Laxmi Narain vs The State of Uttar Pradesh and Another

M. Hidayatullah, J.—In this appeal by special leave only one point is involved and it is whether the High Court was right in directing the Judicial Magistrate, when setting aside an order of discharge, to frame a charge u/s 408 of the IPC and to order the trial of the Appellant. This point arises in the following circumstances:

A complaint was filed against three persons on 11-1-1963 on the allegation that the complainant had pledged 500 tins of vegetable ghee with the Appellant's firm on 21-5-1962 on condition that Rs. 4 per tin would be paid as margin money and the price of the tins which had been purchased by the complainant from Bhagwati Prasad Radharaman, Hathras would be paid by the Appellant's firm to the seller. 500 tins were brought to the firm of the Appellant and Rs. 500 were paid as margin money. Later, the complainant sold these tins and ordered them to be delivered to his purchaser. 300 tins were delivered to the purchaser but 200 tins were not delivered. The complainant served a notice on 10-12-1962 and not receiving a satisfactory reply, finally lodged the present prosecution. The Judicial Magistrate after hearing the case ordered the discharge of all the three accused in the case u/s 253(1) of the Code of Criminal Procedure. A revision filed by the complainant before the Additional Sessions Judge, Aligarh failed. He then filed a second revision application in the High Court at Allahabad. The High Court set aside the order of discharge and directed that a charge u/s 408 of the IPC be framed against the present Appellant and the trial be proceeded with. The discharge of the other accused was maintained.

It is contended in this appeal that the direction to frame a charge u/s 408 of the IPC is beyond the jurisdiction of the High Court when it exercised its powers u/s 436 of the Code of Criminal Procedure. This argument in our opinion is sound. The section only empowers the revisional court to order further enquiry and not to direct a trial. The High Court exceeded its jurisdiction in ordering a trial after directing that a charge under a particular section be framed. The appeal must, therefore, be allowed to this extent only that the direction about framing of the charge u/s 408 of the IPC must be dissolved. We accordingly set aside that portion of the judgment of the High Court which directs the framing of the charge and instead order that the Magistrate shall hold further enquiry in the matter and proceed according to law. Although the High Court, while making the order warned the Magistrate against accepting any conclusion on facts reached by the High Court in considering the revision application, we deem it necessary to give a further caution to the Magistrate to ignore the discussion of the evidence made by the High Court in its order. With this modification, the appeal fails and will be dismissed.