KANNAN Vs. R A VARADARAJAN

JUDGEMENT

(1.) The respondents-accused in Cr.R.C. 47 of 1984 on the file of the II Addl. Sessions Judge, Salem have preferred this application to set aside the order passed by the said court directing further enquiry by another Magistrate. The facts which are necessary for the disposal of this petition are as follows : The first respondent herein preferred a private complaint against these petitioners under Ss.148, 147, 109, 114, 427, 435, 448 and 398, I.P.C. alleging that they came in a body armed with deadly weapons, under the pretext of evicting the complainant and the members of his family, trespassed into the house, broke open the lock and demolished the house and committed dacoity of the valuable articles and thereby caused loss to the extent of Rs.25,000. It is also submitted that the suit filed by the complainant already was pending against petitioners 1 to 6. In the said suit, a Commissioner was appointed and he after inspecting the suit property noted the damages caused to the building by setting fire to it and also gallnut stored therein. He sent telegrams to the higher authorities and reported the matter to the local police. Police did not take any action in the matter. Hence, the complaint. The Judicial Second Class Magistrate, Sankagiri, before whom the said case was filed, examined P.Ws.2 to 8 and marked Exs.P1 and P2 and dismissed the complaint holding that no case is made out for issue of process. Aggrieved by the same, the complainant preferred a revision before the Sessions Judge. The learned II Addl. Sessions Judge, Salem, came to the conclusion that the learned Magistrate himself after recording the sworn statement took the case on file and issued process, but again scored it, and instead of satisfying himself whether there is sufficient ground for proceeding, he disposed of the case as if he delivered the judgment after contest, and that the approach of the Magistrate is erroneous. Consequently, he set aside the order of the Magistrate and ordered further enquiry by some other Magistrate. Aggrieved by the same, the present petition is filed by the accused

(2.) According to the learned counsel for the petitioners, the order passed by the learned Sessions Judge is not valid in law since no opportunity was given to the petitioners to represent then case and as such the whole order is to be struck down as it is invalid under law. It is further stated that the trial Magistrate dismissed the case on the ground that a civil dispute is converted into one of criminal prosecution. There is absolutely nothing to interfere with the said finding and that the first respondent-complainant has not made out a case that he was in possession of the property on the date of occurrence. On the other hand the learned counsel for the first respondent submitted that the remedy of the petitioners is only to file a revision under S.397(2), Cr.P.C. against the said order and that the accused were not entitled to notice at that stage as the complaint was not taken on file. Further, since the petition is filed after the period of limitation, it ought not to be entertained under S.482, Cr.P.C.

(3.) As regards the first point that no notice was given to the petitioners and as such the proceeding is invalid, it has been held by the Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose (1964) 1 SCR 639 : (1963 (2) Cri LJ 397) -