KARAN KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) ONE Diwan Chand lodged FIR No. 142, dated 12.7.1981, at Police Station City Ferozepur, complaining the commission of offences under Sections 326/325/324/34, Indian Penal Code. After investigation, a police report was submitted in the Court of the Judicial Magistrate, Ist Class. The persecution propounded that Jattu Ram accused alone appeared to have committed the offence, whereas his alleged two co -accused, Sunil Kumar, and Parveen Kumar, were innocent of the crime and were shown in column No. 2 Shri G.S. Daliwal, Judicial Magistrate, Ist Class, Fazilka, taking cognizance of the same was persuaded on an application moved by the complainant to summon Parveen Kumar and Karan Kumar as accused. After perusing the police report and other documents on which the prosecution proposed to rely, he came to the conclusion vide his order dated 12.11.1981, that Karan Kumar need be discharged. The trial proceeded against Jattu Ram and Parveen Kumar for nearly three years. Then an application was made in the successor court of Shri. S.M.S. Mehal, Judicial Magistrate, Ist Class, Fazilka for summoning Karan Kumar accused, who was earlier discharged. The learned Magistrate declined the prayer vide order dated 25.9.1981, opening that if he considered the application of the complainant on merits, it would amount to review of the order of his predecessor, dated 12.11.1981, and that in his view, being not impermissible, he rejected the application. The aggrieved complainant filed a revision petition in the Court of Session. Shri R.L. Anand, Additional Sessions Judge, Ferozepur, allowed the revision petition by holding that summoning the accused at that stage would not amount to any review, as opined by the Judicial Magistrate, as on discharge of an accused, the powers of the Court under Section 319 of the Code of Criminal Procedure, did not come to an end. It was further observed that if the evidence adduced before the Magistrate justifies the course of summoning the accused, then recourse can be had to the provisions of Section 319, Criminal Procedure Code. The learned judge then perused the statements of the witnesses and recorded his opinion that there was sufficient ground to proceed against Karan Kumar for the alleged offence. Sequally, a direction was issued to the learned Magistrate to summon Karan Kumar to stand his trial along with other two accused. Aggrieved against that order, Karan Kumar has filed the present revision petition.

(2.) THE parties counsel are one on the point that the view of the learned trail Magistrate in observing that allowing the application of the complainant under Section 319, Criminal Procedure Code, would tantamount to review of the order of his predecessor, was not correct and it deserved to be rectified by the learned Additional Sessions Judge. They are further on the view that the discretion to summon an accused squarely lay with the Magistrate, and that original function could not usurped by the learned Sessions judge while exercising the powers of revision. For the joint stand taken by the parties, there remains no room for discord. That seems to me even the right position in law. It is originally for the learned Magistrate to decide whether on merits a case for summoning an accused has been made out or not, and whether he would exercise discretion in that regard, keeping in all the facts and circumstances of the case. Since no such discretion was left with the Magistrate under the impugned order, that to that extent needs to be and is hereby quashed, leaving it open to the trial Magistrate to decide the application of the complainant afresh in accordance with law as also the observations made heretofore.

(3.) RESULTANTLY , this petition partially succeeds. Petition partially allowed.