ABDUL SHAKOOR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN a case under Section 379 of the Indian Penal Code, Babu alias Kudratullah was tried in the Court of Munsif Magistrate, Jodhpur District. This case was registered by the police on the report of Abdul Shakoor. Abdul Shakoor and the other petitioners appeared as prosecution witnesses in that case. The learned munsif Magistrate while acquitting the accused recorded a finding as required by section 479a (1) of the Code of Criminal Procedure and directed a complaint to be drawn separately against each of the petitioners under Section 193 of the Indian penal Code. Being aggrieved by the said order the petitioners preferred a revision application before the Additional Sessions Judge, Jodhpur, but the same was rejected. They have now come up to this Court in revision.

(2.) IT has been urged inter alia by the learned counsel of the petitioners that the order of the learned Munsif Magistrate to draw and forward a complaint against the petitioners under Section 193 of the Indian Penal Code without giving them an opportunity of being heard, is contrary to law. It is urged that Section 479a (1) of the Code requires that before a complaint is made, the witness should be given an opportunity of being heard.

(3.) IN Criminal Revn. No. 56 of 1961, Mehtab Chand v. State, decided on 9th january 1962, (Raj), similar question was raised before me and I then expressed the view that the provision of giving an opportunity to the witness of being hoard under Section 479a of the Code was mandatory and could not be dispensed with. It was also observed in that case that ''the words 'if it so thinks fit" refer to the making of a complaint and not to the giving of an opportunity to the witnesses of being heard. " The observations made in the above case are clearly applicable in the present case and that decision should also govern it. But learned counsel for the State has brought to my notice a Bench decision of Andhra Pradesh High Court in In re, Javvaji Uthanna, AIR 1964 Andh Pra 368, where a contrary view has been taken and in view of that decision learned counsel has asked me to reconsider my previous decision. The learned Judges in the above case observed;