ESHWARAPPA Vs. GANGAWWA

JUDGEMENT

(1.) The accused have filed this petition under section 482 of the Code of Criminal Procedure questioning the legality and correctness of the order dated 27-4-1984 passed by the Sessions Judge, Raichur in Cr. R.P. No. 87 of 1983, whereby he has set aside the order dated 26- 10-1983 of dismissal of the complaint passed by the J.M.F.C., Yelburga in Private Complaint No. 6 of 1982, and directed to issue process against all the accused persons and dispose of the case on merits in accordance with law.

(2.) Counsel for the petitioner argued, not only the Sessions Judge has committed error in interfering with the order of dismissal of the complaint made by the Magistrate, but he has also materially erred in directing to issue process against the accused persons. He submitted, the only proper order that could have been made by the Sessions Judge was to make further inquiry into the complaint dismissed and not direct issue of process. There is sufficient force in the later part of the contention advanced by the learned counsel for the petitioner. As provided under section 398 Cr.P.C., the only appropriate order that could have been made by the Sessions Judge was to make further inquiry into the complaint dismissed. However it appears, the Sessions Judge was justified in setting aside the order of dismissal passed by the Magistrate for various reasons; because the learned Magistrate had adopted some sort of hybrid procedure while dismissing the complaint as may be presently noticed. The facts of the case leading to the dismissal of the complaint and giving rise to this petition are like this: -

(3.) The respondents Smt. Gangawwa and Smt. Eramma filed a complaint before the Magistrate alleging commission of various offences punishable under the Penal Code. The Magistrate, without taking cognizance of the offence alleged in the complaint, referred the complaint to the police as provided under section 156(3) Cr.P.C. for investigation. The Police registered a case and took up investigation and after investigating the case submitted a. B summary report. On the protest memo filed by one person stated to be holder of general power of attorney, the Magistrate proceeded to record the sworn statement and after considering the sworn statement of the complainant and the witnesses, the Magistrate being of the opinion that the dispute was of civil nature dismissed the complaint. On revision, the learned Sessions Judge has allowed the revision and remitted the complaint back to the Magistrate, as stated above, the correctness of which is sought to be challenged in this petition.