JUDGMENT 1. - This revision petition filed under Section 397/401 Cr. PC has been directed against the order of the learned Additional Sessions Judge No. 1, Jodhpur dated 15-5-88 passed in Criminal Revision Petition No 12/87, whereby he partly accepted the revision petition filed by the complainant-non-petitioner H.S. Sandhu, set aside the order dated 17-12-86 of the learned Judicial Magistrate No. 2, Jodhpur and remanded the matter for further inquiry and for passing necessary orders in accordance with law. 2. Briefly, the relevant facts are that on 20-7-84 complainant H.S. Sandhu filed a criminal complaint against the petitioners for offences under Sections 307, 326, 328, 418, 468, 471 and 491 read with Section 34 IPC. In that complaint, he inter alia alleged that due to pain in his abdomen, he was admitted in the M G. Hospital, Jodhpur on 5-4-1983 where he was diagnosed having appendicular lump accompanied with typhoid fever. He was discharged from the said hospital on 10-4-83 at his own request because the appendicular lump had sub-sided and that there was no urgent need for appendicectomy and that he was under going treatment for typhoid fever. It was alleged that thereafter his fever continued. He, therefore, got himself examined by petitioner Dr. S.M. Gupta, who is a retired surgeon and working in J K Nursing Home run by petitioner No. 3 Jugal Kishore Arora since the year 1971. Dr. S.M. Gupta prescribed certain medicines but when his fever continued and shot upto 1040F, the former advised him to get himself admitted in J.K. Nursing Home, suspecting that there was some puss in his abdomen, which needed incision. Thereupon, the complainant was admitted in the said nursing home on 19-4-83. It was alleged that on 20-4-83. the complainant was taken in the operation theatre of said nursing home for routine check up and for taking fluid from his back bone, where petitioner Dr. S.M. Gupta without taking his consent or that of his wife, himself administered local anaesthesia, operated on him for appendicectomy with the assistance of his son Tarun Gupta, petitioner No. 2, who was at that time a student of M.B.B.S. and not a qualified Doctor and petitioner No. 3 Shrikishan Arora, a retired compounder and father of petitioner No 4. It was further alleged that since the petitioner was suffering from jaundice and it was not an urgent case, his appendicectomy was not warranted. It was further alleged that since the petitioner was suffering from jaundice and it was not an urgent case, his appendicectomy was not warranted. It was also alleged that petitioner No. 2, Tarun Gupta putting on torn gloves in his hands, had stitched complainant's abdomen, which resulted in infection and his condition deteriorated and became serious Therefore, the complainant was taken to Bombay by aeroplane, where he was admitted in Jaslok Hospital and remained there under the treatment of Dr. D. C Patel. It was also alleged that as per tests conducted at J.K. Nursing Home on 15-4-83 and 16-4-83 for the functioning of his liver, it was detected that he was having jaundice but still then in order to charge his operation fees, petitioner Dr. S.M. Gupta with the assistance of other petitioners unnecessarily operated upon him, which resulted into many complications. It was also alleged that on 22-4-83, Dr. Jabar Singh, the brother-in-law of the complainant on the looser side, came to Jodhpur and that he had also diagnosed jaundice to the complainant and that in the night intervening 25th and 26th April, 1983, Dr. S.M. Gupta was called but he refused to attend the complainant saying that he does pay visits to his patients in the night. Thus, the petitioner No. 1 also violated the Code of Medical Ethics. It was further alleged that petitioner No. 1 also made forgeries in the liver function test reports of the complainant by altering their dates from 15th and 16th April, 1983 to 25th and 26th April, 1983 respectively as also by adding Room No. 10 therein, in order to escape his liability and to show that there was no jaundice to the complainant prior to the operation conducted by him on 20th April, 1983 The complainant was admitted on 27th April, 1983 in Jaslok Hospital, Bombay and was discharged therefrom on 16-9-83 and that he had to spend about Rs. 1,00,000/- for his treatment. It was also mentioned in the complaint that after coming from Bombay, the complainant went to S.H.O., P S. Sardarpura, Jodhpur for lodging a report, who refused to register the case on the ground of delay and also advised him to procure necessary orders from the court. The learned Judicial Magistrate transmitted the original complaint under Section 156(3) Cr. PC for investigation. The police registered a case. The learned Judicial Magistrate transmitted the original complaint under Section 156(3) Cr. PC for investigation. The police registered a case. After investigation a final report was submitted on 13-3 85 on the ground that the accused-petitioners had no intention or mens rea to commit the murder of the complainant or to commit any other offence; that Dr. D.C. Patel in his statement dated 11-12-84 recorded under Section 161 Cr. PC had opined that even after taking all pre-cautions during the operation, some times infection creeps in and that appendicectomy can be done to a patient, who is suffering from jaundice: that Dr. Jabar Singh and Smt. Samarjeet Kaur, being close relatives of the complainant are unreliable witnesses and that anaesthesia can be administered by any person. The complainant filed a protest petition on 18-3-85 reproducing his original complaint. The petitioners also filed their reply dated 17-9-86 to the protest petition. The learned Magistrate after hearing them and the learned Additional Public Prosecutor, by his order dated 17-12-86 accepted the final report submitted by the police. The complainant filed a revision petition before the Sessions Judge, Jodhpur, which was transferred to the Court of learned Additional Sessions Judge No. 1, Jodhpur, who by his impugned order dated 15-5-89 held that since the appendicular lump of the complainant was sub-siding after he was discharged from the M.G. Hospital, Jodhpur and as per the prescription ticket prepared by Dr S.M. Gupta, the general condition of the complainant was improving, it was not at all an emergent case warranting appendicectomy. He observed that necessary blood tests were not conducted before the operation on 20-4-83; that no consent was taken from the complainant or his wife for the operation; that petitioner Tarun Gupta was a student of M.B B.S. and not a qualified Doctor and that gloves put on by him at the time of stitching the complainant's abdomen were torn, which prima facie resulted in infection and sepsis. The learned Sessions Judge, after perusing the record also opined that prima facie there were interpolations in the 'liver function test reports' of the complainant and the laboratory test register maintained by petitioners. The learned Sessions Judge, after perusing the record also opined that prima facie there were interpolations in the 'liver function test reports' of the complainant and the laboratory test register maintained by petitioners. He also observed that learned Magistrate at this initial stage was only required to find out from the material collected by the investigation agency as to whether prima facie there existed sufficient ground for proceeding against the petitioners or not and that the statements of complainant and his wife, which were duly corroborated by the documents, could not be dis-believed. He was, therefore, of the opinion that the Magistrate's findings were manifestly erroneous, & arbitrary. He opined that it could not be held that there were no sufficient grounds for proceeding against the petitioners Nos. 1 and 2 for offences under Sections 338 and 465 IPC and that prima facie, offences under Sections 284 and 307 IPC were not made out. The learned Sessions Judge, therefore, by his impugned order dated 15-5-89, partly accepted the revision petition, set aside the order dated 17-12-86 of the Magistrate and remanded the case for further inquiry and for passing necessary orders in accordance with law. Hence, this petition. 3. I have heard learned counsel for the petitioners.learned Public Prosecutor and the learned counsel for the complainant-non-petitioner at length and carefully perused the record of the lower court in extenso. 4. Shri MM Singhvi has vigorously urged that the learned Addl. Sessions Judge has over stopped his jurisdiction in interfering with the well reasoned discretionary order of the Magistrate, whereby he did not find sufficient reasons to take cognizance of any offence against the petitioners. According to him, the learned Sessions Judge had no jurisdiction to observe that prima facie offences under Sections 338 and 465 IPC were made out against petitioners Nos. 1 and 2 and to substitute his discretion by wrongly appreciating the evidence and the material collected by the investigation agency. He has pointed out that the learned Sessions Judge has neither considered the statement of Dr. DC Patel nor the report of the Medical Board and as such the impugned order was illegal, improper and without jurisdiction, which deserves to be quashed. He has pointed out that the learned Sessions Judge has neither considered the statement of Dr. DC Patel nor the report of the Medical Board and as such the impugned order was illegal, improper and without jurisdiction, which deserves to be quashed. He has also submitted that the alleged offence occurred on 20-4-83, that the offences under Sections 338 and 465 IPC are punishable for imprisonment for two years and as such no court can take cognizance of such offence after the expiry of the period of limitation of three years, keeping in view the provisions of Sec 468 Cr. PC and therefore, the order of remand for further inquiry by the Magistrate is also unjustified and that the same will put the petitioners to avoidable harassment and mental torture. 5. Controverting these contentions, Shri H.S.S. Kharlia, the learned counsel for the complainant-non-petitioner has asserted that the complaint was filed on 20-7-84, i.e. within three years of the alleged offence. According to him, the complaint was also filed for offences under Sections 307, 326 IPC and other offences which are punishable for more than three years' imprisonment. Moreover, under Section 473 Cr. PC the court taking cognizance of an offence shall decide as to whether the delay has been properly explained or that it is necessary to extend the period of limitation in the interest of justice. He has argued that at this stage, when the Magistrate has still not taken cognizance, the question of limitation cannot be decided. More-over, the accused-petitioners, against whom neither any cognizance of the offence has been taken nor any process under Section 204 Cr. PC has been issued, have no locus standi to file this revision petition. He has vehemently contended that the learned Magistrate has not cared to scan and evaluate the statement of the complainant, who was the eye witness and victim of the alleged occurrence, as well as the statements of his wife Smt. Sumarjeet Kaur and his witnesses Dr. Jabar Singh and Gurdeo Singh, who were material witnesses and has thus committed manifest illegality in brushing aside their statements merely on the ground that they were relatives. Jabar Singh and Gurdeo Singh, who were material witnesses and has thus committed manifest illegality in brushing aside their statements merely on the ground that they were relatives. He has asserted that from the complaint and the statements of the witnesses as well as the documentary evidence filed by the complainant and the material collected by the Investigating Officer, there are sufficient grounds for proceeding against the petitioners for their gross negligence, for forging the documents and committing the offences detailed in the complaint. 6. The learned Public Prosecutor has reiterated the reasonings given by the learned Sessions Judge and supported the impugned order. 7. I have given my most anxious and ernest consideration to the rival contentions raised before me. 8. First of all, let us find out whether the petitioners have a locus standi to file this revision petition or not? Admittedly, the Magistrate has not taken cognizance of any offence against the petitioners as yet and no process has been issued against them under Section 204 Cr. PC Therefore, they have absolutely no locus itandi and are not entitled to be heard on the question whether the process should be issued against them or not as per observations made by the Apex Court in Smt. Nagawwa v. Veeranna Shivlin-gappa ( AIR 1976 SC 1947 , para-4) . But at present in these proceedings, we are not deciding as to whether the process under Section 204 Cr. PC should be issued against the petitioners or not ? 9. In the instant case, after the final report was submitted by the police and the protest petition was filed by the complainant, an application dated 17-9-86 was filed on behalf of the petitioners praying that the final report be accepted and the complaint filed by the complainant be dismissed. This application was opposed by the complainant on the ground that the petitioners have no locus standi to take part in the proceedings. The learned Judicial Magistrate by his order dated 26-4-85 over-ruled the objections of the complainant and allowed the petitioners to take part in the proceedings pertaining to final report and the protest petition. The learned Additional Sessions Judge No. 2, Jodhpur by his order dated 4-12-85 dismissed the revision petition of the complainant against the said order on merits as well as on the ground that the order dated 25-4-85 of the Magistrate was interlocutory. The learned Additional Sessions Judge No. 2, Jodhpur by his order dated 4-12-85 dismissed the revision petition of the complainant against the said order on merits as well as on the ground that the order dated 25-4-85 of the Magistrate was interlocutory. Against that order, the complainant filed a criminal Misc. application under Section 482 Cr. PC before this Hon'ble Court, which was allowed by Hon'ble M.B. Sharma J. by his order dated 14-1-86 reported in 1986 RLR 170 and it was held as under : "When a protest petition is lodged and the complainant wants to be heard in support of the protest petition; if the accused-persons want to join the proceedings to put them at par with the complainant and to comply with the principles of natural justice, if the learned Magistrate allows the accused to participate in the proceedings, it cannot be said that the order of the learned Magistrate is erroneous or calls for any interference. There is no provision in the Code of Criminal Procedure to file a protest petition by the informant, who lodged the first information, but such has been the practice. That apart, the Supreme Court of India in Bhagwant Singh v. Commissioner of Police 1985 Cr. L.J. 1521 , has held that if the Magistrate decides not to take cognizance of offence or drop proceedings against some persons mentioned in the first information report, he must give notice and hear first informant. No doubt, the Supreme Court has held in Chandra Deo's case (supra) that the accused can watch but not take part in the inquiry, but I am of the opinion that those cases will stand on a different footing then the cases in which a protest petition is lodged on a report under Section 169 of the Code of Criminal Procedure, having been filed to the Magistrate by the SHO., after investigation. In such a case, if a protest petition is lodged by the complainant and he wants to be heard on the question as to whether the report under Section 169 of the Criminal Procedure Code should be accepted or not, if the persons who are accused of an offence and in whose favour after investigation, the police files report under Section 169 Cr. PC., if they want to be heard, the Magistrate has a discretion to hear them rather he should hear them in order to do justice to both the parties. But the hearing is to be confined to the point as to whether the report under Section 169 of the Code of Criminal Procedure is to be accepted or not and to no further". Thus, in this case, the petitioners were allowed to be heard only to the limited point as to whether the final report submitted by the police is to be accepted or not on the ground of principle of natural justice and that it was not a proceeding under Secs 200 and 202 Cr. PC. The learned Magistrate by his order dated 17-12-86 accepted the final report. Thereupon, the complainant in his revision petition filed before the learned Sessions Judge himself arrayed the petitioners as parties and they were granted the right of audience. Therefore, now the complainant is estopped from raising an objection that the petitioners have no locus standi to file this revision petition or that they do not have any right of hearing regarding the acceptance or otherwise of the final report submitted by the police. Moreover, under Section 397/401 Cr. PC., the High Court has to examine the correctness, legality or propriety of any findings, sentence or order recorded or passed and as to the regularity of any proceeding of any inferior court. Since the petitioners were the parties in the revision petition before the Sessions Judge naturally, they have a right to file this petition in this Court Apart from it, under Section 401 (2) Cr. PC., which deals with the High Court's power of revision petition, no order shall be made to the prejudice of the accused or other persons unless he has had an opportunity of being heard either personally or by pleader in his own defence. Therefore, I do not find any substance in the preliminary objection raised by Shri Kharlia that the petitioners have no locus standi to file this revision petition and that on this ground alone this revision petition should be dismissed. 10. Therefore, I do not find any substance in the preliminary objection raised by Shri Kharlia that the petitioners have no locus standi to file this revision petition and that on this ground alone this revision petition should be dismissed. 10. In H.S. Bains v. State Union Territory of Chandigarh ( 1980 (4) SCC 631 ) it has been held that the mere fact that the Magistrate had earlier ordered investigation under Section 156(3) Cr.PC and received a report under Section 173 will not have the effect of total effacement of the complainant, and, therefore, the Magistrate will not be barred from proceeding under Sections 200, 203 and 204 Cr. PC. It was observed by the Apex Court that the Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. It was held that a Magistrate, who on receipt of the complaint, orders an investigation under Section 156 (3) and receives a police report under Section 173(2) Cr. PC, may, thereafter, has the following three options: (i) he may decide that there is no sufficient ground for proceedings further and drop action; or (ii) he may take cognizance of the offence under Section 190 (1) (b) Cr. PC. on the basis of the police report and issue process. This he may do without being bound in any manner by the conclusion arrived at by the police in their report; or (iii) he may take cognizance of the offence under Section 190 (l)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200 Cr. PC. If he adopts the third alternative, he may hold or direct an enquiry under Section 202 Cr. PC. if he thinks fit and thereafter, he may dismiss the complaint or issue process, as the case may be. 11. PC. If he adopts the third alternative, he may hold or direct an enquiry under Section 202 Cr. PC. if he thinks fit and thereafter, he may dismiss the complaint or issue process, as the case may be. 11. In M/s. India Carat Pvt. Limited v. State of Karnataka ( 1989 (2) SCC 132 ) , it has been reiterated that despite a negative police report under Section 173(2) Cr.PC on a complaint sent under section 156(3) Cr.PC for investigation the Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation taking into account the statements of the witnesses examined by the police during the investigation and take cognizance of the case, if he thinks fit in exercise of powers under section 190(l)(b) Cr.PC and direct the issue of process to the accused. It was further held that the Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 Cr.PC for taking cognizance of a case under Section 190(I)(a) though it is open to him to act under sections 200 and 202 Cr.PC also. It was also clarified that the fact that the investigation had not originated from a complaint but had been made pursuant to a report given to the police, would not alter situation in any manner. Therefore, it is the settled position of law that the Magistrate is not bound to the conclusions arrived at by the Investigation officer and to accept the final report, but he can take cognizance of an offence under section 190(l)(b) Cr.PC after taking into account statements of the witnesses examined by the police during investigation and the material collected by the investigation agency, if he finds sufficient grounds for proceeding against the accused. Hence, it is incumbent on the Magistrate to carefully peruse and scan the statements of the complainant and his witnesses recorded under section 161 Cr.PC. 12. In the case in hand, a perusal of the order of the learned Magistrate dated 17-12-1986 unmistakably reveals that he has not taken the trouble to consider and scan the statement of complainant H.S. Sandhu and bis wife Smt. Sumerjeet Kaur, who were eye witnesses of the alleged incident and also the statement of Dr. Jabar Singh and Gurdeo Singh, who were also material witnesses. Jabar Singh and Gurdeo Singh, who were also material witnesses. The complainant and his wife have specifically stated that no consent for the operation was taken by petitioner Dr. SM Gupta; that it was not an emergent case for appendicectomy, that petitioner Tarun Gupta was not a qualified Doctor on the date of alleged occurrence and that he was putting torn gloves, while he stitched the abdomen of the complainant and that by their act of negligence and carelessness, the life of the complainant was endangered due to infection. Dr. DC Patel's opinion is only an expert's opinion, who has simply stated that some times despite precautions, during the operation, the infection takes place. He has also stated that jaundice is of various types and that appendicectomy can even be done to a patient suffering from jaundice. He has also stated that on 27-4-1983, when he examined complaint, his condition was serious but it was difficult for him to say as to whether his operation conducted at Jodhpur was done wrongly. The Investigation Officer had put certain queries to the Superintendent, Associated Group of Hospitals, Jodhpur vide his letter dated 10-1-1985. The said Superintendent vide his letter dated 22-1-85 informed the I.O. that (i) to avoid the pain and shock, it is necessary to administer anaesthesia to the patient; (ii) that an ordinary Doctor as well as the expert, both can administer anaesthesia and that if due to appendicitis high fever, toxicemis sepeticemia the condition of a patient is serious and deteriorating and that if it is likely that there exists more danger to the life of a patient without operation then in such circumstances even during jaundice appendicectomy can be undertaken taking the risk. Thus, from the opinion given by Dr. DC Patel and the Medical Superintendent also, prima facie it cannot be said that the allegations made in the complaint and the statements of the complainant and witness Sumerjeet Kaur, Dr Jabar Singh & Gurdeo Singh are totally false and unreliable. As a matter of fact, the learned Magistrate has failed to take into account the statements of complainant and bis witnesses. He merely brushed aside their statements on the sole ground that they were relatives. This is definitely not the correct approach. 13. As a matter of fact, the learned Magistrate has failed to take into account the statements of complainant and bis witnesses. He merely brushed aside their statements on the sole ground that they were relatives. This is definitely not the correct approach. 13. In Smt. Nagavva v. Viranna Shivalingappa, ( AIR 1976 SC 1947 ) it has been observed that at the stage of taking cognizance and issuing process against the accused, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and is only to be prima facie satisfied as to whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into detailed discussion of the merits and demerits of the case nor can. the High Court go into this matter in its revision jurisdiction. If the allegations made in the complaint or statement of witnesses recorded in support of the same taken at their face value do not make out any case against the accused or the complainant does not disclose the essential ingredients of an offence, which is alleged against the accused or where the allegations made in the complaint are patently absurd and inherently improper so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused then an order of the Magistrate issuing process against the accused can be quashed or set aside. If the discretion exercised by the Magistrate in not issuing the process is capricious or arbitrary or against the record or evidence then also the re-visional court can set aside the order of the Magistrate. Similarly, if the order of the Magistrate is not correct or illegal or improper or against the settled principle of law or against the record then also such an order can be quashed under Section 397/401 Cr. PC. 14. In the instant case, the learned Sessions Judge has given detailed reasons and rightly held that the order of the Magistrate in blindly following the conclusions drawn by the Investigation Officer in the final report and in not considering the statements of the complainant and the witnesses was manifestly erroneous and arbitrary. 15. PC. 14. In the instant case, the learned Sessions Judge has given detailed reasons and rightly held that the order of the Magistrate in blindly following the conclusions drawn by the Investigation Officer in the final report and in not considering the statements of the complainant and the witnesses was manifestly erroneous and arbitrary. 15. This is true that the learned Sessions Judge has no right to take cognizance of an offence or to give a finding as to whether a particular offence is made out against the petitioner or not ? To this extent the learned Sessions Judge has exceeded in his jurisdiction and his observations in that regard deserve to be ignored. In my considered opinion, the learned Sessions Judge has not committed any illegality in setting aside the order of the Magistrate dated 17-12-86 and in remanding the case for further enquiry and for passing necessary orders in accordance with law, 16. Admittedly, the alleged incident took place on 20-4-83, while the criminal complaint was filed in the court on 20-7-84 i.e. within three years, It is also not indispute that till this date no cognizance has been taken of any offence against any of the petitioners. At this stage, it is still not known as to for which of the offences, the cognizance shall be taken or shall not be taken. So the question of limitation will have to be considered by the Magistrate only, if he intends to take cognizance against the petitioners. Section 473 Cr. PC. lays down that notwithstanding anything contained in the foregoing provisions of Chapter 36 i.e. Sections 467 to 472 Cr. PC. any court may take cognizance of an offence after the expiry of the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice. Thus, the power of extending the period of limitation and condoning delay is discretionary and wider than the power under Section 5 of the Limitation Act and that such a discretion can only be used by the Court taking cognizance of the offence. Therefore, the objection of limitation can be raised before the Magistrate in case he finds sufficient grounds for taking cognizance of an offence. 17. In Panne Singh v. State of Rajasthan, (1979 Cr. Therefore, the objection of limitation can be raised before the Magistrate in case he finds sufficient grounds for taking cognizance of an offence. 17. In Panne Singh v. State of Rajasthan, (1979 Cr. LR (Raj.) 466) interpreting the provisions of Sections 468 and 473 Cr. PC it has been observed that the true legal position appears to be that before taking cognizance of an offence after expiry of the period of limitation, the accused shall be given an opportunity of hearing on the question of period of limitation under Section 473 Cr. PC. Therefore, the objection regarding the limitation raised by the petitioners at this stage is premature and the same can be decided by the Magistrate before taking the cognizance of an offence against the petitioners, if he finds sufficient grounds for doing so. 18. In the premise of the above discussion, partly accept this revision petition and confirm the order dated 15-5-89 passed by the learned Sessions Judge No. 1, Jodhpur, to the extent whereby the case was remanded to the learned Magistrate for further enquiry and for passing necessary orders in accordance with law. However, set aside his observations to the effect that sufficient grounds exist for proceeding against petitioners Nos. 1 and 2 for offence under Sections 338 and 465 IPC and that offence under Sections 307 and 284 IPC are prima facie not made out against the petitioners. The learned Magistrate is also directed that he will allow the petitioners the right of hearing only to the limited extent to their objection about the limitation. Since, the matter has been unduly delayed, the learned Magistrate is directed to expedite the matter. The parties are directed to appear before him on 30-7-1992.Revision partly allowed. *******