APPAVU VELAR AND ORS. Vs. MURUGAM

JUDGEMENT

(1.) THE Petitioners herein were the accused in Preliminary Enquiry Case No. 9 of 1961, the charge against them being one under Section 395, Indian Penal Code. The Second Class Magistrate, Mannargudi, who held the enquiry examined six witnesses on the side of the prosecution and two, on the side of the petitioners. On a consideration of their evidence against certain background, facts of long -standing dispute and animosity between the parties, he found that no prima facie case had been made out against the petitioners and that there were no sufficient grounds for committing them to the Sessions. He therefore, discharged the petitioners under Section 209, Criminal Procedure Code. In Revision the learned District Magistrate set aside this order and directed the records to be forwarded to the Sub -Magistrate, Thanjavur, for enquiry and disposal according to law.

(2.) THE point urged by Sri Gopalaswami for the petitioners is that the learned District Magistrate misconceived his powers under Section 437, Criminal Procedure Code, and that on the findings come to in the preliminary enquiry the order directing further enquiry was improper and untenable.

(3.) THERE is some distinction between the procedure to -be adopted at the preliminary enquiry on a private complaint and in proceedings instituted on police reports. The procedure in the latter proceedings is laid down in Section 207 -A, Criminal Procedure Code. In such cases, the Magistrate shall proceed to take evidence of witnesses produced by the prosecution and such other witnesses as deemed by him to be necessary in the interests of justice and after giving the accused an opportunity of being heard, either discharge the accused if in his opinion the evidence and the documents considered by him do not disclose grounds for committing the accused person for trial or commit him for trial when the evidence taken by him and the documents considered by him, warranted such committal for trial. In the latter case, he shall frame a charge under his hand, declaring with what offence the accused is charged.