MISRI AND OTHERS Vs. PIAREY LAL AND ANOTHER

JUDGEMENT

(1.) THIS is an application in revision against an order of the ADM (J) by which order he has set aside an Order of discharge passed against the Applicant by the J.M., Shikohabad.

(2.) A report was made by Pyarey Lal against the eight Applicants at police station Sirsaganj in respect of an occurrence which took place at about 8 a.m. on 20 -7 -1965. All the eight persons are mentioned as accused in the report though in the column relating to the accused only four of them namely the Applicants 1 to 4 are shown as accused. The police investigated the case and submitted a charge sheet against these four Applicants. Later on the complainant Pyarey Lal, who is opposite party in this application, filed a complaint against all the eight persons and the Magistrate took cognizance of the offence and proceeded with the hearing of the complaint. When it came to the stage of taking evidence he found that four out of the eight persons had already been standing their trial in his Court on the basis of the police report. He thought that these four persons could not be tried for the same offence in two cases, separately and he found difficulty in amalgamating the two cases, as the procedure prescribed for a case started on the basis of a police report is the one specified in Section 251 -A of the Code of Criminal Procedure and the procedure prescribed for proceeding with a complaint case is the one laid down in Sections 252 to 259 of the Code of Criminal Procedure. He, therefore, resolved the desperate situation in which he found himself by discharging all the accused. When Pyarey Lal went up in revision to the ADM (J) he found that the order passed by the Magistrate was unjustified. The Additional District Magistrate discussed the law as it we placed before him and set aside the, order of discharge. He has suggested that the police charge sheet in respect of the four accused is to be deemed to be superseded by the complaint of Pyare Lal and to be taken as merged therein except with this option on the part of the Magistrate that he may examine all or any of the witnesses mentioned in the charge sheet Under Section 252(2) of the Code of Criminal Procedure apart from those of the complainant. I find some difficulty in accepting even this solution of the problem which was posed in the case. The Magistrate was obviously not justified in discharging all the eight accused merely because four out of these eight accused were being proceeded with on the basis of a police report and the procedure prescribed for the trial on the basis of the police report and on the basis of a complaint was different. Nor do I think will be permissible for the Magistrate to treat the police case as having merged in the complaint case started at the instance of Pyare Lal.

(3.) IN respect of the jurisdiction which a Magistrate may exercise Under Sub -section (2) of Section 253 we have at least two reported decisions of this Court, Prem Narain Gupta v. Shiv Prasad Agarwala, 1961 AWR 224 and Ram Swarup v. State, 1964 AWR 691 in which it has been held that once the complainant, is required to produce his evidence the Magistrate must examine the whole of it before an accused may be discharged.