KEDARNATH Vs. KAILASHNATH

JUDGEMENT

(1.) THIS revision petition is directed against a decision of the Additional Sessions Judge of Gwalior ordering the prosecution of the applicant Kedarnath under S. 211, I. P. C. The facts are that Kedarnath filed a complaint in the Court of Additional City Magistrate, Lashkar, against Kailashnath and four other persons in respect of offences under Ss. 134, 314, 440, 503 and 505, Gwalior Penal Code. The complaint was dismissed on 15 -7 -1949 and the accused persons were acquitted. While dismissing the complaint the Additional City Magistrate observed that the complaint was "baseless and not proved" (). Thereafter on 18 -10 -1949 Kailashnath presented an application under S. 476, Criminal P. C., in the Court of Additional City Magistrate, Lashkar, for the prosecution of Kedarnath under S. 211, I. P. C.

(2.) AFTER hearing learned counsel for the parties. I have formed the view that the order of the Additional Sessions Judge of Gwalior directing the prosecution of the applicant, cannot be allowed to stand. Under S. 476, Criminal P. C., the court making the complaint has to be satisfied first that it "appears" that an offence under sub -s. (1), Cl. (b) or Cl. (c) of S. 195, Criminal P. C., has been committed and secondly that it is expedient in the interest of justice that an inquiry should be made into such offence. On none of these points the Additional Sessions Judge has given any finding in the present case. All that he did, was first to refer to the evidence on which the Additional City Magistrate had in the complaint filed by Kedarnath come to the conclusion that the complaint against Kailashnath was baseless and made out of enmity and, then he proceeded to observe that in these circumstances it was in 'public interest' and in the interest of justice to prosecute Kedarnath under S. 211, I. P. C. The Additional Sessions Judge said: