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1978 DIGILAW 113 (KAR)

LALAJIBAISHAH v. ASALCHAND HUKMISCHAND PORAWAL

1978-04-17

M.S.NESARGI

body1978
( 1 ) THE order dated 19-7-1977 passed by the Sessions Judge, Bijapur, in crrp. No. 69 of the 1976, setting aside the order dated 18-11-76 passed by the Judicial Magistrate First Class, II Court, Bijapur in a private complaint No. 15 of 1976, dismissing the complaint under Sec. 203 Cr. PC. , 1973 (to be hereinafter referred to as the Code), is challenged in this revision petition. The petitioners are the persons mentioned as accused in the private complaint filed by respondent-1 before the Magistrate. Respondent-l alleged in his complaint that at about 2-00 p. m. , on 13-5-1976 the petitioners had committed theft Of 20 dogras of cotton, stored in his godown situated in Bijapur City limits. The Magistrate directed investigation under Sec. 156 (3) of the Code, and the police after investigating filed a report submitting that 'b' summary recommended by them may be accepted. Respondent-l complainant undertook to prove his allegations and as such the Magistrate took cognizance of offences under Sec. 379 and 380 IPC, examined the complainant and his servant Bhima Shankar, and looked into the account books produced by the complainant. There-after the Magistrate proceeded to consider whether process should be issued against the petitioners Or not and while so considering, concluded that theft of cotton dogras, as alleged by the complainant-respondent-1, had not taken place as the cotton dogras said to have been stolen were really of the ownership of the petitioners. On coming to this conclusion, he dismissed the complaint under Sec. 203 of the Code. Respondent-l complainant filed Cr. RP. NO. 69 of 1976 as against respondent-2-State only. He did not make the petitioners parties in the said revision petition. The learned Sessions Judge has, by his order challenged in this revision petition, reasoned that the Magistrate had acted illegally in taking into consideration the material collected by the Police while investigating into the case as per the directions of the Magistrate by virtue of Sec. 156 (3) of the Code. The learned Sessions Judge has, by his order challenged in this revision petition, reasoned that the Magistrate had acted illegally in taking into consideration the material collected by the Police while investigating into the case as per the directions of the Magistrate by virtue of Sec. 156 (3) of the Code. He has pointed out that while dismissing the complaint under Sec. 203 of the Code, the Magistrate was, in law, bound to take into consideration only the statements on oath of the complainant and his witnesses, and the result of the investigation or enquiry made under Sec. 202 of the Code, but not the result of the investigation made by the police by virtue of a direction under Sec. 156 (3) of the Code. He has purely on the basis of this reason, decided to set aside the order of dismissal of the complaint. While doing so, he has analysed the evidence of respondent-1 the complainant and his witness Bhima Shankter, as if he was exercising his appellate powers, and concluded that their evidence provides ample material to enable the Court to proceed with the case and issue process to the accused viz. , the petitioners to answer the charge for an offence punishable under Sec. 380 IPC and, therefore, dismissal of the complaint under Sec. 203 of the Code, was not proper. Having concluded so, he has ended his order by directing that the case is transferred to the court of the Chief Judicial Magistrate, Bijapur, for registering the complaint as a private case for ah offence or offences disclosed by the complainant and his witness in the light of the discussion made by him earlier, and then to dispose of the case according to law. Sri Raya Reddy, learned Advocate appearing on behalf of the petitioners, firstly argued that the Sessions Judge has ignored the provisions in the proviso to Sec. 398 of the Code. He pointed out that according to the proviso, the Sessions Judge was not right in making a direction against. the interests of the petitioners while the petitioners had not been made parties to the revision petition. He pointed out that according to the proviso, the Sessions Judge was not right in making a direction against. the interests of the petitioners while the petitioners had not been made parties to the revision petition. The proviso referred to above reads as follows :"provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. "this proviso applies in the case of persons who have been discharged. Sec. 398 of the Code lays down that while exercising revisional powers, the High Court or the Sessions Judge may set aside the order of dismissal of a complaint under Sec. 203 or sub-sec (4) of Sec. 204 of the Code, and direct further enquiry into the complaint, and also may set aside the order of discharge in regard to any person accused of an offence. Therefore, the proviso applies only to the case of a person discharged, and not to the case where the complaint has been dismissed under Sec. 203 of sub-sec (4) of Sec. 204 of the Code. Hence this argument of Sri Raya Reddy fails. Sec. 203 of the Code lays down that a Magistrate has power to dismiss a complaint after taking into consideration the statements on path if any of the complainant and his witnesses and the result of the enquiry or investigation if any under Sec. 202 of the Code. Such a dismissal can be made under Sec. 203 of the Code if, after considering the aforementioned material, a Magistrate is of opinion that there are no sufficient grounds for proceeding in the case. Therefore, the Sessions Judge is right in pointing out that the Magistrate ought not to have taken into consideration the material before him which was collected by the police while investigating into the case as per the directions of the Magistrate by virtue ot Section 156 (3) of the Code. Therefore, the Sessions Judge is right in pointing out that the Magistrate ought not to have taken into consideration the material before him which was collected by the police while investigating into the case as per the directions of the Magistrate by virtue ot Section 156 (3) of the Code. The learned Sessions Judge has not stopped at pointing out the illegality committed by the Magistrate, but has gone on to assess the evidence of the complainant-respondent-1 and his witness Bhima Shankar, as if he was exercising his appellate powers, and conclude that that material was sufficient to disclose an offence under Sec. 380 IPC, and to make a direction to issue process against the petitioners. The Sessions Judge had no power to do so while exercising his revisional jurisdiction under Sec. 397 and 398 of the Code. The power that he is empowered to exercise is only to direct further enquiry into the complaint. He cannot direct either the chief Judl Magistrate or any subordinate Magistrate, to take cognizance of an offence or offences or to examine any person or persons or to issue process against any person or persons. But the learned Sessions Judge has done exactly what he is not empowered to do. The only order that the learned Sessions Judge could have passed in this case was to set aside the order of dismissal of the complaint on the ground that the learned magistrate had taken into consideration material not envisaged by Sec. 203 of the Code, and direct further enquiry into the complaint of respondent-1, by the Magistrate, may be by the Chief Judicial Magistrate. The Chief judicial, Magistrate has all the liberty to decide whether he should take cognizance of the offence or offences or whether he should proceed on the material already collected viz, the evidence of the complainant and his witness Bhima Shankar, and issue process against the petitioners, or not to do so. Therefore, the order of the Sessions Judge is bad in law to that extent. In the result, this revision petition is allowed and the order passed by the learned Sessions Judge is modified to the following effect: the order dated 18-11-1976 passed by the Judicial Magistrate First class, II Court, Bijapur, in private complaint No. 15 of 1976 dismissing the complaint of respondent-1-the complainant, is set aside. In the result, this revision petition is allowed and the order passed by the learned Sessions Judge is modified to the following effect: the order dated 18-11-1976 passed by the Judicial Magistrate First class, II Court, Bijapur, in private complaint No. 15 of 1976 dismissing the complaint of respondent-1-the complainant, is set aside. The Chief judicial Magistrate is directed to hold a further esquiry into the complaint of respondent-1 and dispose of the complaint according to law. --- *** --- .