VALI Vs. VALI MOHD

JUDGEMENT

(1.) THE petitioners Vali Mohammad Sakka and Basir son of Karim have filed this petition for revision under sections 401/397 Cr. P. C. against the order of the learned Additional Sessions Judge, Hanuman-garh dated August 6, 1977, by which he directed the Judicial Magistrate, Hanu-mangarh to take cognizance against them for an offence under section 302 IPC and to summon them.

(2.) NON-petitioner No. 1 Vali Mohammad son of Nagar is complainant. After recording First Information Report, regarding an offence of murder, at the instance of complainant, and completing the investigation and arrest of one Idrish, the S. H. O. Flanumangarh submitted a challan for commitment of the case in the court of Judicial Magistrate, Hanumangarh on December 29, 1976. The complainant submitted a protest petition in respect of the same occurrence to the Judicial Magistrate implicating four accused persons including Idrish against whom challan was submitted by the police. The learned Judicial Magistrate, dismissed the protest petition on May 3, 1977 holding that cognizance cannot be taken against them. He observed that there were no sufficient grounds at all to proceed against the petitioners and Karim.

(3.) MR. Bhagwati Prasad, learned counsel for the non-petitioner No. 1 (complainant) submitted that cognizance of offence had already been taken by the Judicial Magistrate against the accused Idrish. The protest petition was nothing but a sort of complaint to the Magistrate against the petitioners and Karim and he was required to decide it judicially. He, therefore, urged that as it was a judicial order, revision against that order, by the complainant was justified. According to the learned counsel, it is only the executive or administrative order which is not revisable. When the protest petition was dismissed, the order tantamount to refusing to take cognizance against the petitioners and Karim. It was not necessary to give an opportunity to the petitioners of showing cause under section 398 Cr. P. C. inasmuch as proviso to that section only applies to a person accused of an offence who has been discharged and question of discharge arises ' after summoning of accused. Learned Public Prosecutor urged that section 239 Cr. P. C. contains provisions relating to discharge and these provisions apply when an accused person is present before the court, and in this case, that stage has not reached as yet, because it is only after taking cognizance that the petitioners would appear before the court.