RATANSHAH KAVASJI Vs. KEKI BEHRAMSHA

JUDGEMENT

(1.) THESE are two applications in revision, the first against an order made on June 3, 1943, by the First Class Magistrate, Bulsar, permitting the Police Prosecutor under Section 495 of the Criminal Procedure Code, 1898, to withdraw the case filed by the petitioner-complainant against six accused under Sections 452, 323, 504, 147 and 149, Indian Penal Code, 1860, and discharging the said accused, and the second against an order made on July 26, 1943, by the same Magistrate dismissing under Section 203 of the Criminal Procedure Code a subsequent complaint made by the petitioner on the same facts.

(2.) THE petitioner made a complaint to the police on February 16, 1943, alleging that the offences had taken place on February 12, 1943. On February 17, 1943, the opponents filed a cross-complaint against the complainant and some others. After investigation the police filed a charge sheet against the accused in the first complaint on February 24, 1943, and the learned Magistrate took cognizance of the said offences. THEreafter it seems that the District Superintendent of Police thought that further investigation was necessary and after such investigation had been made the said officer appears to have moved the District Magistrate who ordered the withdrawal of the case against the accused. On May 20, 1943, the Police Prosecutor who was in charge of the prosecution stated in Court that the District Magistrate had ordered the withdrawal of the case and he asked for the Court's permission for such withdrawal. THE Magistrate passed the following order on June 3, 1943 : THE case is permitted to be withdrawn and the accused are discharged under Section 494, Criminal Procedure Code. THE muddamal should be destroyed under Section 517, Criminal Procedure Code. On June 10, 1943, the petitioner filed a complaint in Court on the same facts. THE complaint was duly verified on July 26, and on the same day the learned Magistrate made an order stating that though "the incident did take place" between the parties the police case had already been permitted to be withdrawn, and as the fresh complaint was based on the same facts as alleged before, the Court saw no grounds to proceed with the complaint, and their complaint was accordingly dismissed under Section 203 of the Criminal Procedure Code. THE applicant filed criminal revision applications against the orders made in both the cases and both the applications were dismissed,

(3.) IN the present case, i. e. the prosecution launched by the complainant, the Court seems to have taken the view that the incident complained of " did take place " and the complaint was duly verified and the verification did not disclose that the complaint was false. There is, besides, a counter-case which, it . seems, is being proceeded with. IN these circumstances it does not appear that it could be said prima facie that there was no ground for proceeding with the complaint. We must, accordingly, hold that it has not been shown that in passing, the order complained of in revision application No. 26 the learned Magistrate applied his mind to the facts of the case, and that, therefore, the order made was not sufficient compliance with the provisions of Section 203.