Sant Singh vs Gurmail Singh

Ujagar Singh, J.—Gurmail Singh, Respondent filed a complaint against the Petitioner u/s s 323, 324 and 326, Indian Penal Code. After examining the complainant as PW 1, PW2 Shinder Singh, PW3 Zora Singh and PW4 Dr. A.S. Dhir, in support of the allegations, the trial court dismissed the complaint. The complainant filed a revision before the session court and that court, vide order Annexure P3 dated 27th September, 1985, set aside the order of the trial magistrate, and gave a finding that offences under the said sections were prima facie made out against the accused. The trial court was directed to summon the accused accordingly. This order of the revisional court was challenged before this Court which set aside the order on the ground that the present Petitioner was not heard, and the case was remanded to that court on that ground for re hearing of the matter on merits. The revisional court again passed an order dated October 5, 1987, and found that there were sufficient grounds to proceed against Sant Singh and his son Balwinder Singh for offences u/s s 323, 324, 326/34, Indian Penal Code. It directed the magistrate to proceed with the trial of the case in accordance with law. It is this order of the revisional court which is under challenge here on the ground that the dismissal of the complaint by the trial court was proper and the session court could not go into the facts found against the complainant by the trial court.

The complainant was summoned and was served but is not present either personally or through counsel. The counsel for the Petitioner has argued that in a revision, findings of fact cannot be set aside, and, therefore, the order of dismissal passed by the trial court could not be set aside in revision.

I have heard the counsel at length. The powers of the revisional court are given u/s 398 of the Criminal Procedure Code, and the Sessions Judge on examining any record can direct the Chief Judicial Magistrate either by himself or by any of the magistrates subordinate to him to make further enquiry into any complaint which has been dismissed u/s 203 or Section 204(4), Code of Criminal Procedure or into the case of any person accused of an offence who has been discharged. In this case the impupned order has been passed under these provisions and I do not find any infirmity or irregularity therewith because at the stage of summoning what has to be considered by the magistrate is as to whether there are sufficient grounds for proceeding with the complaint, if ho is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. This provision does not require that the evidence at that stage should be sufficient for recording a conviction Sufficiency or insufficiency of the evidence is a matter to be considered with a view to finding out whether there is a sufficient ground for proceeding with the complaint. Once it is found that the grounds do exist for proceeding with the complaint, an order for summoning has to be passad u/s 204 of the Cr P. C. In view of this, the order of dismissal passed by the trial court was bad in law as there was basis and sufficient ground to proceed with the complaint, as has been found by the session court.

I, therefore, do not find any merit in this petition which is hereby dismissed.

However, on a reading of the impugned order I find that the session court has gone beyond its jurisdiction u/s 398, Cr. P. C. by giving a finding that there are sufficient grounds to proceed against Sant Singh and his son Balwinder Singh for offences u/s s 323, 324, 326/34, IPC, and thereby remanding the case with a direction to proceed with the trial in accordance with Jaw. As stated earlier, the power that vested in the session court was only to 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 inquiry into any complaint which has been dismissed u/s 203 or Sub-section (4) of Section 204, or into the case of any person accused of an of fence who has been discharged. It seems that the impugned order is not happily worded which led to the framing of the charge straightaway on receipt of the case back by the trial magistrate. As a matter of fact, this order ought to have been passed u/s 398, Cr. P. C., and the file was required to be sent only to the Chief Judicial Magistrate either to make an enquiry by himself or direct any magistrate subordinate to him to hold such an enquiry. To this extent, the direction given by the Additional Session Judge is beyond jurisdiction

The petition is, consequently, dismissed with these observations.