RAMLAL SAO Vs. GULAB CHAND

JUDGEMENT

(1.) The petitioner in this case is the complainant in a criminal case instituted on his complaint pending in the Court of the Munsif Magistrate and this application in revision is directed against an order dated the 2nd August, 1969. The relevant facts, which have given rise to this application may be briefly stated as follows: The petitioner filed a petition of complaint on the 4th April, 1969, against the present opposite party for an offence under Sec. 420 of the Indian Penal Code in the Court of Sub -divisional Magistrate, Nawadah. The allegation in the complaint petition was to the effect that the opposite party was not executing the deed of sale with respect to the properties agreed to be sold to the petitioner under a registered deed of Baibeyana and for which the petitioner had already paid a sum of Rs. 2,790/ -.

(2.) It has been stated in the application that the opposite party has been an Honorary Magistrate at Nawadah for several years. During the pendency of the criminal case in the Court of the learned Magistrate, on the 16th June, 1969, the opposite party filed his bail bond and, after his appearance the case was adjourned to the 27th June, 1969, on which date the opposite party filed a petition making a prayer that he may be discharged under the provisions of Sub -section (2) of Sec. 253 of the Code of Criminal Procedure, on the ground that the allegations on which the complaint had been filed were baseless. The learned Magistrate considered the petition and then on the 3rd July, 1969, passed an order to the effect that unless he examines some witnesses for the prosecution under Sec. 252 of the Code, he cannot discharge the accused and he ordered for summoning the petitioner for his evidence on the 2nd August, 1969. The petitioner thereafter preferred an application in revision, being Criminal Revision No. 79 of 1969, in the Court of the Sessions Judge of Gaya. The petitioner was aggrieved with this part of the order of the learned Magistrate that he ordered that the complainant be examined on the 2nd August, 1959, and thereafter the petition for discharge will be considered. The learned Sessions Judge rejected the petition as he did not consider it to be a fit case for a reference to be made to the High Court, but, towards the concluding portion of his order, he referred to the provisions of Sub -section (1) of Sec. 252 of the Code of Criminal Procedure, and then he further observed that in the circumstances the learned Magistrate should consider the desirability of considering other evidence which may be adduced in support of the prosecution case on the date fixed.

(3.) As stated above, the date fixed in the case was the 2nd August, 1969, and on that date a petition was filed on behalf of the petitioner (complainant) to the effect that he was ill and he made a prayer that summonses be issued to his witnesses for the next date. The learned Magistrate, by his order dated the 2nd August, 1969, rejected the prayer of the petitioner for summoning the witnesses of the complainant on the ground that the complainant would have to examine himself first and thereafter the learned Magistrate will consider the desirability of summoning his other witnesses. The petitioner, thereafter again preferred a revision application before the learned Sessions Judge of Gaya, which was registered a Criminal Revision No. 110 of 1969. The learned Sessions Judge in this revision also did not consider it to be a fit case for reference to the High Court, as the order of the learned Magistrate was not contrary to law, and, therefore, he dismissed the revision application. But the learned Sessions Judge in this order also invited the attention of the learned Magistrate to the decision in the case of (1) Gajadhar Singh V. The Emperor ( : A.I.R. 1943 Pat 424), wherein it was held that it is open to the prosecution to examine their witnesses in any order they choose. After the dismissal of this application, the petitioner, has come to this Court in revision and, as stated above, this application is directed against the order dated the 2nd August, 1969. It may be also mentioned here that another date fixed in the case was the 10th September, 1969, on which date also the learned Magistrate stuck to his previous order that the complainant should be examined first.