LALAJIBAISHAH Vs. ASALCHAND HUKMISCHAND PORAWAL

JUDGEMENT

(1.) THE order dated 19-7-1977 passed by the Sessions Judge, Bijapur, in CrRP. No.69 of the 1976, setting aside the order dated 18-11-76 passed by the Judicial Magistrate First Class, II Court, Bijapur in a private complaint No. 15 of 1976, dismissing the complaint under Sec. 203 Cr.PC., 1973 (to be hereinafter referred to as the Code), is challenged in this revision petition. THE petitioners are the persons mentioned as accused in the private complaint filed by respondent-1 before the Magistrate. Respondent-l alleged in his complaint that at about 2-00 p.m., on 13-5-1976 the petitioners had committed theft Of 20 dogras of cotton, stored in his godown situated in Bijapur City limits. THE Magistrate directed investigation under Sec. 156(3) of the Code, and the police after investigating filed a report submitting that 'B' summary recommended by them may be accepted. Respondent-l complainant undertook to prove his allegations and as such the Magistrate took cognizance of offences under Sec.379 and 380 IPC, examined the complainant and his servant Bhima Shankar, and looked into the account books produced by the complainant. THEre-after the Magistrate proceeded to consider whether process should be issued against the petitioners Or not and while so considering, concluded that theft of cotton dogras, as alleged by the complainant-respondent-1, had not taken place as the cotton dogras said to have been stolen were really of the ownership of the petitioners. On coming to this conclusion, he dismissed the complaint under Sec. 203 of the Code. Respondent-l complainant filed Cr.RP. NO. 69 of 1976 as against respondent-2-State only. He did not make the petitioners parties in the said revision petition. THE learned Sessions Judge has, by his order challenged in this revision petition, reasoned that the Magistrate had acted illegally in taking into consideration the material collected by the Police while investigating into the case as per the directions of the Magistrate by virtue of Sec. 156(3) of the Code. He has pointed out that while dismissing the complaint under Sec. 203 of the Code, the Magistrate was, in law, bound to take into consideration only the statements on oath of the complainant and his witnesses, and the result of the investigation or enquiry made under Sec. 202 of the Code, but not the result of the investigation made by the police by virtue of a direction under Sec. 156(3) of the Code. He has purely on the basis of this reason, decided to set aside the order of dismissal of the complaint. While doing so, he has analysed the evidence of respondent-1 the complainant and his witness Bhima Shankter, as if he was exercising his appellate powers, and concluded that their evidence provides ample material to enable the Court to proceed with the case and issue process to the accused viz., the petitioners to answer the charge for an offence punishable under Sec. 380 IPC and, therefore, dismissal of the complaint under Sec. 203 of the Code, was not proper. Having concluded so, he has ended his order by directing that the case is transferred to the Court of the Chief Judicial Magistrate, Bijapur, for registering the complaint as a private case for ah offence or offences disclosed by the complainant and his witness in the light of the discussion made by him earlier, and then to dispose of the case according to law. Sri Raya Reddy, learned Advocate appearing on behalf of the petitioners, firstly argued that the Sessions Judge has ignored the provisions in the proviso to Sec.398 of the Code. He pointed out that according to the proviso, the Sessions Judge was not right in making a direction against. the interests of the petitioners while the petitioners had not been made parties to the revision petition. THE proviso referred to above reads as follows :