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2006 DIGILAW 325 (AP)

Polisetty Padmavathi v. T. Mallikarjuna Gupta

2006-03-08

P.S.NARAYANA

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( 1 ) HEARD the learned counsel on record. ( 2 ) THE learned Senior Counsel sri Padmanabha Reddy would maintain that when the l-Additional Judicial Magistrate of first Class of Khammam had accepted the final report and the protest petition is rejected. It would be an order falling under Section 203 or the Code of Criminal Procedure (for short the Code ). The learned counsel also would maintain that the matter was carried by way of Crl. R. P. No. 50 of 2004, where under the court of Session while allowing the revision straight away directed the learned Magistrate to take cognizance of the offences and the disputed fact of putting date can be decided after full trial. The learned Senior Counsel would comment that this direction is contrary to the specific provisions of Section 398 of the Code. ( 3 ) ON the contrary, the learned Public prosecutor would contend that in the light of the language employed in Section 398 of the Code, the power is to orderfurther enquiry if need be, such straight direction cannot be issued by the Court of Session. The docket order dated 9-8-2004, passed by the l-Additional Judicial Magistrate of First Class, khammam, reads as hereunder:"heard the learned counsel for the complainant-protest petitioner. Complainant is an advocate. He is in the legal profession. It was he who issued the public notice on behalf of his client and he knew pretty well that 22-6-2003 was the last date for receiving objections from the public. Complainant himself stated he was away to Suryapet on 22-6-2003. On the very next date i. e. , on 23-6-2003 when the complainant asked A-1 as to the date of that day and when A-1 allegedly told him that it was 22-6-2003, it was expected that it should have struck to his mind that it was not 22-6-2003 and it was 23-6-2003 because on the just previous day i. e. , on 22-6-2003 he had been to Suryapet on some personal work. This was expected particularly because 22-6-2003 was the last date for receiving objections from the public. In the copy of the notice filed in the petition for violation of injunction the date of the notice might have been changed to 22-6-2003. The complainant can as well take the same defence in that I. A. The police already investigated into the matter and filed final report. In the copy of the notice filed in the petition for violation of injunction the date of the notice might have been changed to 22-6-2003. The complainant can as well take the same defence in that I. A. The police already investigated into the matter and filed final report. This Court need not accept the report and can reject the report and proceed further in the matter in view of the decisions in pratap v. State of U. P. (1991 Crl. Law journal, 1969 H. S. B. A in v. State of chandigarh (AIR 1980 S. C. 1883) and m/s. India Carat Pvt. Ltd. , v. State of karnataka AIR 1989 SC. 885 , but the complainant being a legal practitioner himself put the date as 22-6-2003 as the date of receipt of notice and in the circumstances aforesaid. Having regard to the above facts and circumstances of the case final-report is accepted and the protest petition is rejected proceedings shall be issued accordingly". ( 4 ) AGGRIEVED by the same, it appears that the complainant carried the matter by way of revision in Crl. R. P. No. 50 of 2004 on the file of the Principal Sessions Judge at Khammam and the learned Judge after recording reasons allowed the revision petition setting aside the order of the learned Magistrate and further directed to take cognizance of the offence and further observed that the disputed fact of putting date can be decided after full trial para-9 of the order dated 8-4-2005 reads as hereunder:"in view of the above legal position, the lower Court ought to have taken the cognizance of the offences and the order of the lower Court is set-aside directing the lower Court to take cognizance of the offence and the disputed fact of putting date can be decided after full trial. " ( 5 ) SECTION 398 of the Code reads as hereunder:power to order inquiry: On examining any record under Section 397 or otherwise, the High Court or the sessions Judge may direct the Chief judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or sub-section (4) of Section 204, or into the case of any person accused of an offence who has been discharged. 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. ( 6 ) WHILE passing order, exercising the revisional jurisdiction, the Court of session could have as well set aside the Order and could have further ordered further enquiry to be conducted and the learned Sessions judge, instead of giving such direction, in fact directed the learned Magistrate to take cognizance of the offences straightaway. This approach adopted by the learned sessions Judge and the direction issued in relation thereto, appear to be not in accordance with Section 398 of the Code referred to supra. Hence, the impugned order is accordingly modified and it is made clear that the l-Additional Judicial Magistrate of first Class, Khammam to proceed with further enquiry in accordance with Section 398 of the Code referred to supra. To the said extent the Criminal Revision case is hereby allowed, modifying the order impugned in the present revision.