Kannan Alias Krishnaraj and Others vs R.A. Varadarajan and Another

The respondents-accused in Cr.R.C. 47 of 1984 on the file of the II Addl. Sessions Judge, Salem have preferred this application to set aside

the order passed by the said court directing further enquiry by another Magistrate. The facts which are necessary for the disposal of this petition

are as follows : The first respondent herein preferred a private complaint against these petitioners under sections 148, 147, 109, 114, 427, 435,

448 and 398, I.P.C. alleging that they came in a body armed with deadly weapons, under the pretext of evicting the complainant and the members

of his family, trespassed into the house, broke open the lock and demolished the house and committed dacoity of the valuable articles and thereby

caused loss to the extent of Rs. 25,000/-. It is also submitted that the suit filed by the complainant already was pending against petitioners 1 to 6.

In the said suit, a Commissioner was appointed and he after inspecting the suit property noted the damages caused to the building by setting fire to

it and also gallnut stored therein. He sent telegrams to the higher authorities and reported the matter to the local police. Police did not take any

action in the matter. Hence, the complaint. The Judicial Second Class Magistrate, Sankagiri, before whom the said case was filed, examined P.Ws.

2 to 8 and marked Exs.P1 and P2 and dismissed the complaint holding that no case is made out for issue of process. Aggrieved by the same, the

complainant preferred a revision before the Sessions Judge. The learned II Addl. Sessions Judge, Salem, came to the conclusion that the learned

Magistrate himself after recording the sworn statement took the case on file and issued process, but again scored it, and instead of satisfying

himself whether there is sufficient ground for proceeding, he disposed of the case as if he delivered the judgment after contest, and that the

approach of the Magistrate is erroneous. Consequently, he set aside the order of the Magistrate and ordered further enquiry by some other

Magistrate. Aggrieved by the same, the present petition is filed by the accused.

According to the learned counsel for the petitioners the order passed by the learned Sessions Judge is not valid in law since no opportunity was

given to the petitioners to represent their case and as such the whole order is to be struck down as it is invalid under law. It is further stated that the

trial Magistrate dismissed the case on the ground that a civil dispute is converted into one of criminal prosecution. There is absolutely nothing to

interfere with the said finding and that the first respondent-complainant has not made out a case that he was in possession of the property on the

date of occurrence. On the other hand the learned counsel for the first respondent submitted that the remedy of the petitioners is only to file a

revision under S. 397(2), Cr.P.C. against the said order and that the accused were not entitled to notice at that stage as the complaint was not

taken on file. Further, since the petition is filed after the period of limitation, it ought not to be entertained under S. 482, Cr.P.C.

As regards the first point that no notice was given to the petitioners and as such the proceeding is invalid, it has been held by the Supreme Court

in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, -

Held, that an accused person does not come into the picture at all till process is issued. Even though he may be allowed to be represented by

counsel, he has no right to take part in the proceedings nor has the Magistrate jurisdiction to permit him to do so. The Magistrate cannot put

questions at the instance of a person named as accused but against whom no process has been issued nor can he examine any witnesses at the

instance of that person. The enquiry made by the Magistrate was therefore vitiated.

That was also a case where a similar contention was raised that on a revision filed by the complainant no opportunity was given to the accused

and that was repelled by the Supreme Court. The above view has subsequently been followed consistently by this court u/s (sic) recent judgment in

Somu alias Somasundaram and Others Vs. The State and Another, . In view of the ratio laid down in the above quoted decisions, the accused

cannot be heard to say that in view of the fact that no notice was given in the revision proceedings, the order passed by the Sessions Judge is

vitiated. Hence, I see no force in the contention.

As regards the maintainability of this petition, it is to be noted that it has been held in Madhu Limaye Vs. The State of Maharashtra, -

But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the

ends of justice interference by the High Court is absolutely necessary, then nothing contained in S. 397(2) can limit or affect the exercise of the

inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very

sparingly.

It is also observed -

The label of the petition filed by aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent

powers.

The learned counsel for the respondent relied on the following passage in the said judgment -

Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in

the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could

be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power.

Their Lordships further proceeded -

But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the

ends of justice interference by the High Court is absolutely necessary then nothing contained in S. 397(2) can limit or affect the exercise of the

inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly.

One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction.

It is to be noted that in the instant case, the accused have no locus standi even before the lower court and hence, it cannot be said that the

remedy is only to file revision. In the circumstances, certainly the petition for quashing impugned order under S. 482, Cr.P.C. is maintainable. The

only question to be found out is whether there is any abuse of process of court or miscarriage of justice, so as to warrant the exercise of the

inherent power by the High Court. On going through the order passed by the Sessions Judge, I find that the reasons given by the Judicial Second

Class Magistrate, Sankagiri, for dismissing the complaint under S. 203, Cr.P.C. are not tenable and further the approach is improper. At the stage

of issuing process against the accused, he has to see whether the allegations made in the complaint or the statements of witnesses in support of the

same taken at its face value make out a case against the accused and that they disclose the essential ingredient of the offence which is alleged

against the accused and whether the complaint suffers from any fundamental legal defects, such as, want of sanction, or absence of a complaint by

legally competent authority. He must exercise discretion judiciously and not capriciously and arbitrarily. In a nut shell, it is the duty of the Court to

find out whether there is sufficient ground to proceed against the accused. Though P.Ws. 1 to 8 have consistently stated that accused 1 to 18 came

with deadly weapons and damaged the house and committed dacoity, he has not considered the same in a proper perspective, but only proceeded

as if he is trying the entire case on merits after recording evidence and dismissed the complaint for the non-production of the will executed in favour

of the complainant and the rent receipts to prove the tenancy and also the suit records to show the state of the case. On the other hand, it is the

case of the complainant that he filed the suit against petitioners 1 to 6 for declaration of his title to the suit property and for permanent injunction on

the ground that out of the seven houses he was in possession of the two houses and leased out five houses to tenants and that the accused were

making attempts to drive him out. The said suit is numbered as O.S. 706 of 1982. Additional Sub-Court, Salem. Details of the case have been set

out in the plaint. It is only to get over the same, the first petitioner fabricated records as if the houses which are in the possession of the complainant

were let out to the 8th petitioner and obtained a collusive decree and on the strength of the same, they came to forcibly and unlawfully evict the

complainant and the inmates of the houses and in spite of their protest, demolished the house intimidated them, committed dacoity and caused loss

to the extent of Rs. 25,000/-. It cannot be said that the finding of the Additional Sessions Judge that the order of dismissal of the lower court is

liable to be set aside is wrong, as he has failed to follow the ratio laid down in the decision of the Supreme Court in Chandra Deo Singh Vs.

Prokash Chandra Bose and Another, .

Next it was contended by the learned counsel for the petitioners that though the learned Magistrate has not passed the proper order, it is not

open to the Sessions Judge to direct further enquiry by some other Magistrate and thereby sit over the judgment of another Magistrate. I do not

find any merit in the said contention. Section 398, Cr.P.C. reads as follows -

On examining any record under S. 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 enquiry into any complaint which has been dismissed u/s 203 or sub-section (4) of S. 204, or into the case of any person accused of

an offence who has been discharged.

Learned counsel for the petitioners drew my attention to the decision in Abu Bakkar Vs. Belal Sheikh, . On going through the said decision, I

find that it does not help the case of the petitioners. That was also a case where the superior court ordered to hold further enquiry on the dismissal

of the complaint under S. 203, Cr.P.C. It was held -

The order by a superior court to hold further enquiry into a complaint which has been dismissed under S. 203 has a technical meaning. It simply

means reconsideration, but what more step has to be taken thereafter depends on the circumstances of each case. If further enquiry has been

directed into a complaint which was dismissed soon after the examination of the complainant on solemn affirmation, the order for further enquiry

can be carried out by examining the witnesses cited by the complainant. In a case where the complaint has been dismissed after a full enquiry, such

order can only be complied with by issuing processes against the persons complained against.

It is further held in the said decision -

Merely because a prima facie case was supposed to have been made out to enable the Sub-Divisional Magistrate to take cognisance of the case,

it would not necessarily follow that prima facie case has been made out for committing the accused person to the Court of Session for trial. The

duty of the enquiring Magistrate under S. 207 is not the same as the duty of Sub-Divisional Magistrate to take cognisance upon a complaint. The

Magistrate holding enquiry under S. 207 cannot mechanically commit an accused to the Court of Session for trial.

In the instant case also, the case is triable by the Sessions Judge and the Magistrate to whom the case is sent has to satisfy himself whether it

was a case for committal and then take cognizance and commit the accused for trial. Hence I do not find any illegality in the order passed by the

learned Sessions Judge directing reconsideration and further enquiry into the complaint on the witnesses examined on the side of the respondent-

complainant and disposal according to law. For all these reasons, I am of the view that the petitioners have not made out any case for setting aside

the order passed by the Sessions Judge by invoking the inherent power u/s 482, Cr.P.C. as there is nothing to hold that there abuse of process of

court or miscarriage of justice.

In the result, the petition fails and stands dismissed.

Petition dismissed.