STATE OF MYSORE Vs. NAGAPPA SANNIGAPPA SUNNAKKI

JUDGEMENT

(1.) The facts which have given rise to this revision case briefly stated are thus: The complainant instituted a complaint before the Judicial Magistrae, First Class and- Additional Munsiff, Ranebennor, on Feb. 12, 1970 against one Ninganagouda Shivanagouda Patil and another alleging that they had committed theft of a pair of bullocks. The learned Magistrate, referred the matter for investigation to the Police to satisfy himself about the truth or otherwise of the allegations made in the complaint. The Police sent a 'B' report on June 1st, 1970, stating that the allegations made by the complainant were false. The learned Magistrate did not accept the 'B' report. The complainant examined, himself and one witness in support of his case. The learned Magistrate at that stage looked into the papers relating to the investigation made by the police and on the basis of the information contained therein, observed:

(2.) It is clear from the facts stated above that the learned Magistrate without considering the evidence adduced on behalf of the complainant has proceeded to pass the impugned order merely on the basis of the report of the police. This is clearly illegal. No order has been passed on the complaint petition filed by the complainant. S.476 CrPC. lays down that the Court may after such preliminary enquiry, if any, record a finding to that effect and make a complaint thereof in writing signed by the Presiding Officer of the Court etc. In other wcrds, the Court has got to satisfy whether it is expedient in the interest of justice that an enquiry should bo made into the offences referred to in sub-sec. (1) clause(b) or clause(c) of S.195 CrPC. which appears to have been committed in or in relation to a proceeding in that Court. The power given by the Section, should be used with care and after due consideration. It is by no means in every instance in which a party fails to prove his case that the Judge who has decided against the said party, is justified in exercising the powers given to him by this Section. The prosecution should not be lightly granted merely because there is room for suspicion that the offences may have been committed; the Court is bound to satisfy itself that there is at least a prima facie case if sanction is granted, there is reasonable probability of a successful termination of the prosecution about to be instituted. Before exercising its discretion to lay a complaint, the Court should find first that it is in the interest of public justice that a complaint should be made and secondly that there is reasonable probability of a conviction resulting on the complaint.

(3.) The complainant in this case had no opportunity of impugning what had been recorded by the police during the course of the investigation. The learned Magistrate was not justified in making use of the material collected during the course of investigation against the complainant without giving him an opportunity to challenge the same. Ordinarily a person ought to be given an opportunity to show cause before he is ordered to be prosecuted under Ss.196 and 211 IPC. In the present case tthat opportunity was not given to the complainant. That apart, the complainant examined himself and one witness on his behalf in support of the allegations made by him in the complaint petition. The learned Magistrate, without considering that evidence and without passing any order on the merits of the case of the complainant, was not justified in taking action under Section 476 CrPC.