Inderjit vs Naresh Kumar and Others

S.S. Dewan, J.—This revision is by Inderjit, one of the accused in this case, and it is directed against the order of the learned Additional Sessions Judge, Ludhiana, in revision reversing the order of discharge passed by the Judicial Magistrate 1st Class, Ludhiana.

The facts giving rise to this revision are very few and simple, Naresh Kumar complainant-respondent filed a complaint that Inderjit and Dharam Paul, were the Secretary and Cashier, respectively, of the Ram Lila Committee, Ghudani Khan, which was previously unregistered. On 11th May, 1978, at about 4 p m, the Petitioner and the three other accused were present near a dharamshala of Loodo ke-Patti The President and the Secretary of the new Society demanded register etc. from the accused, who started abusing the complainant and in that process, the accused caused some injuries to him. It is alleged that the complainant was medically examined and was found to have 7 simple injuries on his person. Since no action have been taken by the police, the present complaint was filed on 11.7.1978 After preliminary evidence, the Petitioner and Dharam Paul were summoned for the offence u/s 323 Indian Penal Code. Thereafter, the complainant examined Lai Chand and Vidya Sagar, P Ws., besides himself coming into the witness box. The learned Magistrate after having considered the evidence of the prosecution witnesses hat summed his conclusion in paragraph No. 10 of the order in the following terms:

The motive for causing injuries by the accused was that the complainant wanted the accused to hand over books of the society but the accused refused to hand over the books. It shows that both the parties were on hostile terms and the complainant and the accused were arrested by the police under Sections 107/151 of the Cr. P. C on 11 6 1978. This complaint teems to have been filed by the complainant in order to put pressure upon the accused to return the record and cash of the society. If the occurrence would have taken place as alleged by the complainant then Vidya Sagar, Lal Chand and Pardeep Kumar, who are the witnesses of the occurrence must have rescued the complainant from the accused Inderjit and Dharam Paul and in the scuffle, they must have also received some injuries Since Vidya Sagar Lal Chand and Pardeep Kumar did not receive any injuries from the accused, nor the accused received any injury from the hands of Naresb Kumar, it shows that the complainant did not receive the injuries as alleged by him.

Taking the view that the prosecution did not succeed to make out a case against the accused which, if unrebutted, would warrant their conviction, the learned Magistrate passed an order discharging the accused u/s 245(1) of the Code of Criminal Procedure, 1973 (for short, the New Code) This was the order that -was challenged in revision before the learned Additional Sessions Judge and the order passed by the learned Additional Sessions Judge reversing the order of the trial Magistrate is the subject matter of this revision.

Before proceeding with the discussion regarding the merits of the case as revealed by the evidence on the record I should at this stage like to dispose of the contention raised by the Learned Counsel for the complainant-respondent with respect to jurisdiction of this Court to interfere with the order that has been passed by the learned Additional Sessions Judge in revision Reliance has been placed by the Learned Counsel on the decision of the Andhra Pradesh High Court in Sesha Reddy v. Ghina Pullaiah AIR 1958 A.P. 595, where the view taken is as follows:

Where an order is made by the Sessions Judge in the exercise of the discretion vested in him u/s 436, Code of Criminal Procedure (1898), it is only where the order is shown to be manifestly unjust or perverse that the High Court can possibly interfere in its revisional jurisdiction.

The circumstances in which a revisional Court can interfere u/s 401 of the New Code, have been indicated by Velu Pillai, J., in Kochukutta Menon v. Varied 1963 K.L.T. 538 as follows:

The scope of interference in revision with an order of discharge is very limited. A revisional Court may interfere with an order of discharge if it is patently foolish or perverse or perfunctory.. A revision is competent when the order of discharge is manifestly unreasonable or foolish or prima facie incorrect or perverse. If the Magistrate has not applied his mind to the case, the revisional Court can interfere.

Similar view has been taken in Varkey George and Ors. v. K.P. Vasu Pillai 1959 K.L.T. 770.

The contention of the Learned Counsel for the complainant is that when the revisional Court on facts of the case has taken a view, it is not open to the High Court in revision to set aside that finding and substitute its own finding. Sub-section (1) of Section 245 of the Code reads as follows:

245 (1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him

The Sub-section in terms does not speak anything about a prima facie case. The real test in terms of the Sub-section seems to be whether or not the prosecution has made out a case for conviction of the accused. If the Magistrate finds on a consideration of the evidence adduced by the prosecution that no case against the accused which, if unrebutted, would warrant a conviction, has been made out, the Magistrate has to pass an order of discharge in favour of the accused The propriety of the order that has been passed by the Judicial Magistrate 1st Class, Ludhiana, on the one hand and that of the learned Additional Sessions Judge Ludhiana, on the other has to be determined, and the question whether there is a case for interference by this Court in revision u/s 40! of the New Code, has to be decided on a careful examination of the material placed before this Court to see whether or net the requirements u/s 245(1), have been made out. I may at once add that I do not find any merit in the contention of the Learned Counsel for the complainant that the learned Judicial Magistrate 1st Class, was in error in having discharged the accused. Having examined the evidence led by the prosecution, the trial Court found that no case warranting a conviction has been made out and passed an order of discharge u/s 245 of the Code. I do not find any illegality, impropriety or irregularity about this order. I have, therefore, absolutely no hesitation in holding that the learned Additional Sessions Judge has acted in a perveise and unjust manner causing miscarriage of justice, in setting aside that order and sending back the case to the trial Court for further enquiry in the matter.

In the light of the foregoing, discussion, this revision is allowed; the order of the Additional Sessions Judge, dated July 14, 1980 is set aside and the order of the Judicial Magistrate lit Class, Ludhiana, dated December 15, 1979 is confirmed.

Petition allowed.