Sheo Ram vs Dari Singh

V.S. Aggarwal. J.

Petitioner Sheo Ram filed a complaint against Dari Singh and others. After recording of the preliminary evidence, learned Additional Chief

Judicial Magistrate, Narnaul on January 7, 1992 passed an order summoning the respondents with respect to offences punishable under Sections

323 and 506 of the Indian Penal Code.

The respondents preferred a revision petition. On February 17, 1993, learned Additional Sessions Judge, Narnaul accepted the revision petition

and set aside the order of the learned trial Court. It was held that the order passed by the learned Magistrate was not in accordance with law

because he had not applied his mind to the evidence on the record. The case was remitted to the learned trial Court for disposal in accordance

with law.

Aggrieved by the order dated February 17, 1993, of the learned Additional Sessions Judge, Narnaul, the petitioner Sheo Ram has preferred the

present petition.

Subsection (1) to Section 204 of the Code of Criminal Procedure runs as under :

Issue of process. : (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case

appears to be

(a) a summons case, he shall issue his summons for the attendance of the accused, or

(b) a warrant case, he may issue a warrant, or if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time

before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

It reveals that the provision of Subsection (1) to Section 204 of the Code of Criminal Procedure in its stark brevity does not prescribe the form

of the order but leaves it to the Magistrate to record reasons if there are sufficient grounds for proceeding against the accused.

The words in the opinion of the Magistrate pointed out necessity of application of judicial mind to the allegations and evidence on record and

rules out the possibility of either acting mechanically or arbitrarily. In other words, the Court of the Magistrate has merely to form an opinion as to

sufficiency of grounds for proceeding. He has to apply his judicial mind to the material on record and this application of mind should be exhibited in

the order itself.

The attention of the Court was drawn to the two decisions of this Court, which were relied upon by the learned Additional Sessions Judge,

Narnaul. In the case of Vas Dev Parshad and another v. Bhagat Ram, 1978 Chandigarh Law Reporter 16. A complaint had been filed and after

recording the statement the complainant and other evidence, the learned Judicial Magistrate had summoned the accused with respect to the offence

punishable under Section 406 of the Indian Penal Code. The order passed by the learned Judicial Magistrate has been reproduced in paragraph

10 of the cited judgment and reads as under :

The allegations against the accused are that the complainant has been selling onions through accused Nos. 1 and 2 who are commission agents

and he sold onions of the value of Rs. 21,362,.34 on the following dates, that is 2.11.74, 6.11.74, 8.11.74 and 9.11.74 and the accused Nos. 1

and 2 had committed criminal breach of trust and stated that they had paid the money to Lal Chand accused No. 3 and the money be recovered

from him. It is further stated that when complaint contacted accused No. 3 Lal Chand, he refused to pay the money. Hence, the complaint 406,

420, I.P.C. (sic).

From the above allegation, I find sufficient ground to proceed against the accused under Section 406 IPC. The accused be summoned on payment

of P.F. filing of list of witnesses and copy of complaint for 16.7.1975.

It was held that only allegations in the complaint were looked into and perhaps the Magistrate thought that the statement of the complainant and

the evidence adduced was of no relevance. In pursuance thereto, the order passed by the learned Judicial Magistrate was set aside and he was

directed to pass a fresh order after scrutinizing the allegations in the complaint, statement of the complainant and other evidence.

The other decision to which attention of this Court was drawn was in the case of Harkesh and others v. Ram Das, 1978 Chandigarh Law

Reporter 22. A complaint had been filed and after recording of the preliminary evidence, learned Magistrate had passed an order, ""Heard. The

accused be summoned under Section 420 I.P.C. for 16.1.1976"". When the petition was filed for quashing of the said order, it was held that the

order shows lack of application of judicial mind and that no reason had been recorded.

Both the decisions namely in the case of Vas Dev Parshad and Harkesh (supra) are confined to the peculiar facts of the respective cases.

There is no controversy as already referred to above with the principle of law that tenor of the order must indicate that the learned Judicial

Magistrate has applied mind to the facts of the case and the evidence. Perusal of the order passed by the learned Judicial Magistrate reveals that in

brief the learned trial Court has taken note of the facts and also the evidence that was produced before him before an order was passed

summoning the respondents. It leaves no doubt that there was application of judicial mind to the complaint as well as the evidence before the

Court. Learned Additional Sessions Judge, therefore fell into a grave error when it concluded that the learned Magistrate has not applied his

judicial mind to the complaint and the evidence on the record. Therefore, the order of the learned Additional Sessions Judge cannot be sustained.

No opinion is expressed on the merits of the matter and nothing said herein should be taken as any expression of opinion. Learned Additional

Sessions Judge, Narnaul would be at liberty to rehear the revision petition and dispose of the same in accordance with law.

For these reasons, I accept the petition and set aside the judgment of the learned Additional Sessions Judge, Narnaul dated February 17,

1993. Parties are directed to appear before the learned Additional Sessions Judge, Narnaul on February 7, 1995 who shall proceed and decide

the revision petition.