Dhanjee Ram Sharma vs Narander Paul and Others

Tek Chand, J.—This criminal revision arises out of proceedings taken u/s 107 of the Code of Criminal Procedure against the respondents, who are four in numbers. On 10th November, 1960, Shri, H.L. Guliani, Sub Divisional Magistrate, passed an order that there was no evidence and the police had been granted a number of opportunities. In the absence of any evidence, the respondents were ordered to be discharged.

The matter was taken up in revision by the petitioner before the Additional Sessions Judge. It transpires that the Magistrate had taken cognizance of the case and had passed an order u/s 112 of the Criminal Procedure Code. u/s 117, sub-section (3) of the Code of Criminal Procedure, the respondents were directed to execute a bond for keeping the peace until the conclusion of the enquiry. The learned Additional Sessions Judge has observed that when the names and addresses of the witnesses had been furnished and were mentioned in the calendar forming part of the police report, it was the duty of the Magistrate to compel the appearance of the witnesses by issuing summonses but this was not done. The learned Additional Sessions Judge expressed the view that the order of discharge was bad in law, and he thought that the order was not legally sustainable, but he had no jurisdiction to quash the order of discharge and to direct further enquiry. He referred to Partap Singh v. Emperor (1931) 32 Cr. L.J. 21. The facts of that case were entirely different. There an application u/s 107 was dismissed by a Magistrate on the ground that there was no apprehension of breach of peace and it was held that in such a case the District Magistrate had no power to order further enquiry. There is no such finding of the trial Court in this case. The order of discharge was passed not because there was no longer apprehension of breach of peace, but because the witnesses did not appear in this Court despite several adjournments. The fact is that the witnesses were never summoned though several adjournments had been granted.

In the circumstances, I allow this petition of revision and set aside the order of the Magistrate, dated 10th November, 1960, and direct him to proceed with the case after issuing summonses to the witnesses.