JUDGMENT 1. - This revision petition is directed against the order dated 10.1.1997 passed by learned Additional Sessions Judge, Ratangarh in Criminal Revision No. 104/1992, whereby the learned revisional court set aside the order dated 15.9.1990 passed by Additional Chief Judicial Magistrate, Ratangarh by which the complaint filed by non-petitioner No. 2 Pusha Ram was dismissed under the provision of section 203 Cr.PC. 2. I have heard the learned counsel for the parties. 3. Briefly stated facts which are necessary for the decision of this revision petition are thus; a complaint was filed by non-petitioner No. 2 Phusa Ram on 20.6.1990 in the court of learned Additional Chief Judicial Magistrate, Ratangarh against the petitioner which discloses the commission of offences under sections 447, 323, 504, 500 and 147 I.P.C. It was stated therein that on 29.5.1990 complainant purchased Abadi land by a registered sale deed from C.W. 6 Nemi Chand for consideration of Rs. 15000/- and came into possession of the land purchased by him. The land purchased by him was covered by patta. It was alleged that on 31.5.1990 while he was getting some work done on the land so purchased by him through one Omprakash, suddenly the accused-petitioners trespassed on the land possessed by him and he was abused and beaten by the petitioners, his throat was pressed and he was beaten by fist. At that point of time, Ridhkaran, Bhikam Chand Sevag, Gyana Ram Sevag and Shanti Lal Sevag came on the spot and rescued him. Prior to filing of this complaint, non-petitioner No. 2 Pusha Ram lodged the first information report No. 71 dated 1.6.1990 with Police Station, Ratangarh on the same facts against the petitioners. Motilal petitioner No. 3 also lodged F.I.R. No. 72 dated 1.6.1990 against 14 persons and non-petitioner No. 2 is one of them stating therein that the said Moti Lal is Chairman of Oswal Panchayat, Padihara. It was alleged that the land situated at ward No. 13 is owned by Oswal Panchayat. The said Panchayat is in possession of the land since the period of Jagir for last 54 years. The said land was purchased by Oswal Panchayat in the Samvat year 1993 from Santok Chand, Roop Chand, Meghraj Lodha of Padihara. It was alleged that the land situated at ward No. 13 is owned by Oswal Panchayat. The said Panchayat is in possession of the land since the period of Jagir for last 54 years. The said land was purchased by Oswal Panchayat in the Samvat year 1993 from Santok Chand, Roop Chand, Meghraj Lodha of Padihara. It was alleged that while construction work of the building by Panchayat was going on in the night of 30.5.1990, 14 persons including non-petitioner No. 2 installed stone slabs on the land possessed by Panchayat was misappropriated and the stone slabs were broken into pieces by the persons named in the F.I.R. The police registered a case against non-petitioner No. 2 and 13 others for offence under sections 447, 147 and 323 I.P.C. and investigated F.I.R. case No. 72/90 and filed a charge- sheet against 14 persons but filed a final negative report on the F.I.R. No. 71/90 which was lodged by non-petitioner No. 2. On complaint filed by non-petitioner No. 2, the learned trial Magistrate recorded the statements of C.W. 1 Pusha Ram, C.W. 2 Ridhkaran, C.W. 3 Gyanchand, C.W. 4 Shanti Lal, C.W. 5 Bheeka Ram, C.W. 6 Nemi Chand and C.W. 7 Om Prakash. The learned trial Magistrate by order dated 15.9.1990 reached to the conclusion that there is no sufficient ground for proceeding further and dismissed the complaint filed by non-petitioner No. 2 under the provision of section 203 Cr.P.C. 4. Aggrieved by the order of the learned trial Magistrate, the non-petitioner No. 2 filed a revision before the learned Additional Sessions Judge, Ratangarh who vide order dated 10.1.1997, accepted the revision petition and set aside the order dated 15.9.1990 passed by the learned trial court. 5. Aggrieved by the order dated 10.1.1997 passed by the revisional court, the petitioners filed this revision petition before this Court. 6. It was contended by the learned counsel for the petitioners that the order impugned suffers from illegality, inasmuch as conclusion arrived at by the learned revisional court is perverse and erroneous. It was further contended that the trial court after appreciation of the material before it reached to the conclusion that there is no sufficient ground to proceed further and dismissed the complaint. It was further contended that the trial court after appreciation of the material before it reached to the conclusion that there is no sufficient ground to proceed further and dismissed the complaint. It was also contended that the complainant Pusha Ram failed to establish the identity of land, as its boundaries do not tally with the alleged patta and said to have been issued in the name of Ranglal, the father of C.W. 6 Nemi Chand the vendor, as also possession. It was further contended that non-petitioner No. 2 Pusha Ram is alleged to have purchased the land from C.W. 6 Nemi Chand by a registered sale deed for consideration of Rs. 15000/-. None of the witnesses was consistent with regard to measurement of land, its boundaries and the consideration paid by the complainant. Thus neither the measurement of land has been proved by the complainant's witnesses nor its possession. In the sale deed, the measurement of the land was shown to be 231.87 sq. yard alleged to have been purchased by non-petitioner No. 2 from C.W. 6 Nemi Chand whereas, C.W. 1 Pusha Ram in his statement before the trial court stated that he had purchased total land measuring 1140 sq. yard for a consideration of Rs. 15000/-. C.W. 6 Nemi Chand stated before the trial court that he sold two pieces of land; one for consideration of Rs. 15000/- which was covered by patta issued in the name of his father Ranglal and another which was possessed by him for consideration of Rs. 10,000/-. Land which was covered by Patta was transferred in favour of C.W. 1 Pusha Ram by registered sale deed measuring 300 sq. yards and rest of the land which was sold to Pusha Ram by agreement for a consideration of Rs. 10,000/- for which he has no patta but it was his possessory land. Remaining witnesses C.W. 2 Ridhkaran, C.W. 3 Gyanchand, C.W. 4 Shanti Lal and C.W. 5 Bhika Ram are witnesses of the occurrence relating to the trespass and assault. All these witnesses stated that all the petitioners came to the land in question and assaulted non-petitioner No. 2 Pusha Ram and also abused him. Bheeka Ram further stated that Oswal Panchayat wanted to purchase the disputed land from C.W. 6 Nemi Chand for a consideration of Rs. 5000/- but Nemi Chand refused to sell the said land for Rs. All these witnesses stated that all the petitioners came to the land in question and assaulted non-petitioner No. 2 Pusha Ram and also abused him. Bheeka Ram further stated that Oswal Panchayat wanted to purchase the disputed land from C.W. 6 Nemi Chand for a consideration of Rs. 5000/- but Nemi Chand refused to sell the said land for Rs. 5000/- and ultimately he sold to Pusha Ram. This was the cause of assault on C.W. 1 Pusha Ram. There is a sale deed on record which corroborates that by the said sale deed non-petitioner No. 2 came into possession of the land. The trial court dismissed the complaint mainly on the ground that there are material contractions in the statements of the complainant's witnesses. C.W. 1 Pusha Ram stated that he has purchased the land from C.W. 6 Nemi Chand for a consideration of Rs. 15000/- measuring 1140 sq. yard. He stated that the land which he purchased from C.W. 6 Nemi Chand was under Patta (Pattasud), whereas C.W. 6 Nemi Chand says that he has sold the land measuring 300 sq. yard for a consideration of Rs. 15,000/- which was covered by the patta. He further stated that he does not know about the measurement of the land which was sold to Pusha Ram no covered by Patta. C.W. 1 Pusha Ram does not say that he has purchased any land from C.W. 6 Nemi Chand not covered by Patta. Thus, there are material contradictions between the statements of vendor C.W. 6 Nemi Chand and purchaser C.W. 1 Pusha Ram not only with regard to the measurement of the land but also with regard to the consideration passed on between the parties. C.W. 1 Pusha Ram says that he has purchased the land for consideration of Rs. 15000/-, whereas C.W. 7 Nemi Chand the vendor says that he has sold the land for consideration of Rs. 15,000/- and 10,000/- meaning thereby for Rs. 25,000/-. Land alleged to have been sold by a registered sale deed which does not tally with the patta is placed on record so much so the boundaries of the land covered by the said sale deed did not come true according to the measurement deposed by the complainant's witnesses. 7. 15,000/- and 10,000/- meaning thereby for Rs. 25,000/-. Land alleged to have been sold by a registered sale deed which does not tally with the patta is placed on record so much so the boundaries of the land covered by the said sale deed did not come true according to the measurement deposed by the complainant's witnesses. 7. The learned trial court has also taken into account the fact that in the alleged sale deed dated 29.5.1990, it is mentioned that the land was sold @ Rs. 25/- per sq. metre. The total land transferred by the sale deed was measuring 86 sq. metre. Thus, the sale price works out to Rs. 2150/- only whereas in the sale deed the consideration is shown to be of Rs. 15000/-. No satisfactory explanation to this anamoly is on record. The trial court further noticed that there are material contradictions in the boundaries of the land and on these grounds, formed the opinion that the said sale deed is not free from suspicion. With regard to the beating given to C.W. 1 Pusha Ram, the trial court observed that according to the complainant he was assaulted by as many as 6 persons but no injury was found on the person of C.W. 1 Pusha Ram. Thus, considering the entire material formed the opinion that there exists no sufficient ground to proceed. It was contended by the learned counsel for the petitioner that on the basis of the F.I.R. lodged by the petitioner Moti Lal, the Police filed the charge-sheet against non-petitioner No. 2 Pusha Ram and 13 others which ultimately resulted in conviction of non-petitioner No. 2 and others for the offence under sections 447, 323 and 147 I.P.C. Except non-petitioner No. 2 Pusha Ram, others were extended the benefit of section 4(1) of the Probation of Offenders Act and respondent No. 2 was convicted and sentenced for three months' simple imprisonment and fine of Rs. 200/- and in default of payment of fine, to further undergo one month's simple imprisonment. 8. It was further contended that the learned revisional court committed illegality inasmuch as it failed to consider the negative final report filed by the police before taking cognizance. 200/- and in default of payment of fine, to further undergo one month's simple imprisonment. 8. It was further contended that the learned revisional court committed illegality inasmuch as it failed to consider the negative final report filed by the police before taking cognizance. He has placed reliance on the judgment of this Court in Jagdish Ram v. State 1998(2) WLN 311 , wherein this Court held that the record which has been submitted by the police is a material placed on the record and it is the duty of the Court to consider that record and then to arrive at its own conclusion whether in such a case process should be issued against the accused or not. He has also placed reliance on the judgment of Hon'ble Supreme Court in M/s. Pepsi Foods Ltd. & anr. v. Special Judicial Magistrate & ors. 1998 Cr.L.R. (SC) 18 , wherein their Lordships in para 22 of the reports held that; summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not the complainant who has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 9. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 9. He has also relied on a judgment of the Hon'ble Supreme Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, A.I.R. 1960 SC 1113 , wherein the Hon'ble Supreme Court held as under : "Section 203 makes it clear that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry. But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding. This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment he is not fettered in any way except by judicial considerations, he is not bound to accept what the inquiring officer says, nor is lie precluded from accepting based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on a complaint or not." 10. Learned counsel for non-petitioner No. 2 supported the order impugned passed by the revisional court. It was contended by the learned counsel for non-petitioner No. 2 that the revisional court had taken into account the material on record and set aside the order passed by the learned trial court. This Court while exercising revision jurisdiction should normally not interfere with the order. It was contended by the learned counsel for the non-petitioner No. 2 that while conducting enquiry under section 202 of CrPC., it is not open to the Magistrate to consider the statements recorded during the investigation by the police. He further contended that the negative final report cannot be considered at the time of consideration of complaint. It was contended by the learned counsel for the non-petitioner No. 2 that while conducting enquiry under section 202 of CrPC., it is not open to the Magistrate to consider the statements recorded during the investigation by the police. He further contended that the negative final report cannot be considered at the time of consideration of complaint. It was also contended that it is not open for the Magistrate to consider the statements recorded or the evidence adduced before him during the enquiry arising out of another case. He submitted that it was not open for the learned trial Magistrate or for this Court to consider the negative final report and the evidence adduced before the trial Magistrate during the enquiry arising out of another complaint. Thus, the contention raised by the learned counsel for non-petitioner No. 2 is that the fact of trial court convicting non- petitioner No. 2 and 13 others in a criminal case arising out of the F.I.R. lodged by the petitioner Motilal i.e. F.I.R. No. 72/90 should not be considered while forming the opinion under section 203 Cr.PC. He has placed reliance on the judgment of the Supreme Court in Chandra Dev Singh v. Prokash Chandra Bose alias Chabi Bose and another, A.I.R. 1963 SC page 1430 , wherein Hon'ble Supreme Court has observed as under : "Where the Magistrate has ordered an enquiry under section 202 by another Magistrate it is not open to him to consider the statements recorded during investigation by the police or the evidence adduced before him during the enquiry arising out of another complaint. If the Magistrate has based his decision in dismissing the complaint on such extraneous matter, the proceedings would be vitiated." 11. He also relied on a judgment of the Hon'ble Supreme Court in Mitthulal v. State of M.P., 1975 Cr.L.J. 236 (SC) . Hon'ble Supreme Court held as under : "It is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case though it may be a cross- case cannot be taken into account in arriving at the decision." 12. Hon'ble Supreme Court held as under : "It is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case though it may be a cross- case cannot be taken into account in arriving at the decision." 12. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & ors., A.I.R. 1976 SC 1947 , their Lordships observed as under : "It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one." 13. The learned counsel for non-petitioner No. 2 further relied on a judgment of this Court in Kalu and others v. State AIR 1965 Rajasthan 74 . In this case this Court held that the finding in the counter case is not legally admissible evidence in the present case. The finding was arrived at on a consideration of the evidence in that case, and cannot be accepted as evidence in the present case. 14. I have gone through the order impugned dated 15.9.1990 passed by the learned Magistrate. The learned Magistrate has neither considered the negative final report submitted by the police in F.I.R. No. 71/90 nor has considered the evidence adduced by the petitioners in another case i.e. the counter case arising out of F.I.R. No. 72/90, wherein non-petitioner No. 2 and 13 others were convicted by the learned trial Magistrate. What has been done by the learned Magistrate is that whatever evidence was produced by the complainant C.W. 2 Phusa Ram in support of his complaint has only been discussed and nothing more and after having considered the evidence and the material produced by the complainant in support of the complaint, the learned Magistrate reached to a conclusion on appreciation of the material that there exists no sufficient ground to proceed further and accordingly dismissed the complaint by exercising the powers as envisaged under section 203 of the Cr.PC. 15. 15. In Chandra Dev v. Prokash Chandra (supra), the Hon'ble Supreme court held as under : "No doubt, one of the objects behind the provisions of section 202 Cr.PC. is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face a obviously frivolous complaint. But there is also another object behind this provisions and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view too bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant." 16. It was further held by their Lordships as under : "Since the object of an enquiry under section 202 is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under section 203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under section 202 or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this." 17. In Nagawwa v. Veeranna Shivalingappa Konjalgi & ors. , Hon'ble Supreme Court held as under : "It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing in the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercise his discretion it is not for the High Court, or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, are totally foreign to the scope and ambit of an inquiry under section 202 which culminates into an order under section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside." 18. Keeping in view the above noticed proposition of law laid down by Hon'ble Supreme Court in the judgments referred to above, I proceed to examine the instant case. As noticed above, the learned trial Magistrate has considered and taken into account only the material placed by the complainant in support of his complaint including the statements of the complainant's witnesses noticed above and sale deed. The learned Magistrate has not at all taken into account the final report submitted by the police on the first information report lodged by the complainant i.e. F.I.R. No. 71/90 nor the evidence adduced by the petitioners in the counter case arising out of F.I.R. No. 72/90. All these contentions have been raised before this Court. In view of the judgment of Hon'ble Supreme Court referred to above, the negative final report and the judgment of the conviction rendered by the learned trial Magistrate in a cross case cannot be considered in the present case. However, even without considering the negative final report and the judgment of conviction recorded by the learned trial court on a counter case lodged by the petitioners, I do not find any error in the order of the learned trial Magistrate. The revisional court has not considered the improbabilities and the contradictions in the statements of witnesses produced by the complainant as also the sale deed and, therefore in my considered opinion, the learned revisional court was in error in affirming the finding of the learned trial court. In this view of the matter, judgment of the revisional court cannot be sustained and is liable to be set aside. 19. In this view of the matter, judgment of the revisional court cannot be sustained and is liable to be set aside. 19. In view of the aforesaid discussion, this petition succeeds and it is hereby allowed. The order impugned dated 10.1.1997 passed by the learned Additional Sessions Judge, Ratangarh is set aside and the order of the learned Chief Judicial Magistrate, Ratangarh dated 15.9.1990 is restored.Revision allowed - Order of Lower Revisional Court Set Aside - Order Dismissing Complaint By Magistrate Restored. *******