PRABHULAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) A complaint was filed by Motilal non -petitioner No. 2 against petitioners and some five other persons for the offence under Sections 447, 324 and 147 IPC in the court of Judicial Magistrate, Chhoti Sadri. The complaint was dismissed under Section 203 Cr.P.C. The complainant preferred a revision against that order of dismissal of complaint before the Sessions Judge. Pratapgarh The learned Sessions Judge partly accepted the revision observing that prima facie a case under Section 323 and 324 IPC was made out against the petitioner. He directed the Magistrate to proceed further in the matter keeping in view the observations made by him, vide his order dated 30 -7 -1977. It is against this order that the petitioners have come before this Court.

(2.) I have heard learned Counsel for the petitioners, the learned Public Prosecutor and the learned Counsel for the complainant.

(3.) THE next contention of the learned Counsel for the petitioner is that in view of the provisions of Section 398 Cr.P.C. if the learned Sessions Judge was of the opinion that further enquiry was necessary in the complaint he could have only directed the Magistrate to make further enquiry into the complaint which was dismissed under Section 203 Cr.P.C. It was not within the powers of the learned Sessions Judge to have ordered the summoning of the petitioners. If the case was remitted for further enquiry it was within the discretion of the Magistrate to act on it according to law after holding further enquiry but the learned Sessions Judge could not have, by his order, fettered the discretion of the learned Magistrate. Nimba v. Bhana Ram 1957, R.L.W. 627 was relied upon by the learned Counsel for the petitioners. Mr. Saluja for the complainant and Mr. Bhandari do not dispute this legal position. The order of the learned Sessions Judge observing that a prima facie case is made out against the petitioners under Section 323 and 324 is therefore, bad in law and is liable to be quashed.