Chhedi Upadhya vs Emperor

Adami, J.—The petitioner laid a complaint before the Magistrate u/s 379, Indian Penal Code. The Sub-Divisional Officer directed the Sub-Inspector to enquire and report. In his explanation, the Sub-Deputy Magistrate states that the case being a cognizable one was sent to the Police for investigation. What this means is not quite clear.

The Police, it appears, reported that the case was not true and then the Sub Divisional Magistrate issued a notice on the complainant to show cause why he should not be prosecuted u/s 182, Indian Penal Code. It seems from the explanation of the Sub-Deputy Magistrate that the complainant came forward and undertook to prove his case, but this is not shown in the order sheet However, on the 24th of October 1922 the Sub-Divisional Magistrate transferred the case to the Sub-Deputy Magistrate for disposal, and thereafter on the same day the Sub-Deputy Magistrate examined the complainant and four of his witnesses and on the 27th October cross-examined the witnesses and examined the witnesses for the other side. It appears that these witnesses were produced by the Court Sub-Inspector. Thereafter on the 14th November the Sub-Deputy Magistrate drew up an order in which he found that the complainant and his witnesses had failed to prove the complainant''s case and that they were not to be relied on. He found the case was false and dismissed the complaint u/s 203, Criminal Procedure Code. He found that the petitioner filed a complaint against Ramsaroop Singh and Janki Singh accusing them of theft with intent to cause injury and thereupon ordered that proceedings u/s 476, Criminal Procedure Code, should be drawn up against the petitioner for prosecution u/s 211, Indian Penal Code. When the Sub-e Divisional Magistrate proceeded on the Police report stating the Police report to be I false it was open to him to dismiss the case on the ground that it was false and then issue notice on the complainant to show cause why he should not be prosecuted. The learned Sub-Divisional Officer, however, did not dismiss the complaint but apparently gave the complainant a chance of showing that the report of the Police was untrue and that his case was a true one. But even, so, the procedure before the Sub-Deputy Magistrate appears to be wrong. He has practically held a trial allowing the cross examination of the prosecution witnesses and calling of the defence witnesses. This is not the regular procedure. The question before the Trying Magistrate was whether prima facie the complainant has made out a true case which would justify the summoning of the accused.'' What happened really was a trial of the complainant''s case in the, absence of the accused, though witnesses for the accused were called. Now, furthermore, from the order of the Sub-Deputy Magistrate and the reasons that he has given in his order it is not clear to me that his enquiry showed the case to be maliciously false. It is true that the complainant failed to prove his case, but failure to prove a case is not the same thing as the institution pf a, maliciously false case.

Considering the procedure followed and in view of the above reasons, I do not think that any further proceedings should be taken in the case and I direct that the order for the prosecution of the petitioner should be set aside.