GANESH RAM Vs. GHUDIA

JUDGEMENT

(1.) ONE Ganeshram was being tried for an offence under Section 403, Indian Penal Code on a complaint by one Battu applicant in the Court of the Munsiff-Magistrate Second Class, Nasrullahganj. On 29-10-52 Battu complainant was absent and one Ghudia alias Ghudmal son of Chudaman filed an application and affidavit that Battu was ill. Ganeshram accused filed an application on the same day that the affidavit was false and that Battu was not ill on that date and action be taken against Ghudia, The Magistrate rejected the application merely on the ground that the application did not state the provision of law under which the application was filed. Ganeshram then filed a revision petition to the Sessions Court, to set aside the order and the learned Additional Sessions Judge has referred the case, under Section 438, Criminal P. C. , recommending that the order be set aside and the Magistrate be asked to give the findings on the points framed by him according to the provisions of law.

(2.) ON notice being issued, the non-applicant Ghudia was absent. Government Advocate on behalf of the State conceded that the order of the Magistrate was not proper as he had failea to exercise his jurisdiction, out pointed out that the remedy was an appeal under Section 476-B, Criminal P. C. and not a revision. The learned Additional Sessions Judge purports to observe that mere being no prayer for taking action against Ghudia, the application should nave been rejected without registration, but as it was registered and an inquiry was made, the Magistrate should have examined the law and given his rinding on the essentials or the relevant provision. Though 1 do not agree with the earlier part of the observation, I agree with the latter part. It is not necessary for a party to point out the law. It is the duty of a Court to examine the allegations of a party, and to see if any action on them can be taken, and the provision of law under which it can be so done. It cannot refuse to take action simply because such provision of law, under which action is sought, is not stated by the party. The order of the Magistrate, therefore, was no doubt clearly wrong, incorrect and improper.

(3.) THE nest question is whether the revision or an appeal lay to the Sessions Judge.