JINILAL MANDAL Vs. CHANDERDEO PROSAD

JUDGEMENT

(1.) This is an application in revision against the dismissal of a complaint under Section 203, Criminal P.C. The Sessions Judge was first moved in revision against this order, but declined to interfere. It has been contended on behalf of the petitioner that the procedure followed by the Sub-Divisional Magistrate, whose order is challenged, was irregular in many respects, and that therefore his order should be set aside. The principal grievance of the petitioner is that in the inquiry under Section 202 into the petitioner's complaint his witnesses were allowed to be cross-examined by the accused and witnesses were examined on behalf of the latter including the Sub-Inspector of Police who was among the accused.

(2.) The learned advocate for the petitioner has relied on Varadarajulu Nayudu v. Kuppswamy Nayudu A.I.R. 1927 Mad. 18 which was followed by a Pull Bench of the Madras High Court, whose decision is reported on page 918, Appa Rao Mudaliar V/s. Janaki Ammal A.I.R. 1927 Mad. 19 of the same volume. But as was pointed out in this Court in Mahabir Baitha V/s. Emperor A.I.R. 1931 Pat. 302, the true position appears to be that while the practice of examining the accused and their witnesses, and letting the prosecution witnesses be cross-examined by the defence in an enquiry under Section 202, Criminal P.C., has been repeatedly condemned by the various High Courts, it has not been held that such a course is illegal. Scroop J. in the last mentioned case Mahabir Baitha Vs. Emperor A.I.R. 1931 Pat. 302 added: It is obvious that there must be oases where some preliminary enquiry, in the course of which an accused's statement is desirable, must be held. For instance, in the case of a public servant, obviouly it would be unreasonable that in every case of accusation one should be liable to be dragged to Court on a summons without having opportunity of giving an explanation as to the facts alleged against him.

(3.) In the present case, the Magistrate had good reason to look into the case of the persons accused by the petitioner before summoning them, because the accusation arose out of the facts of a Sub-Inspector of Police who had previously submitted a report under Section 144, Criminal P.C., regarding some land claimed by the petitioner on the one hand and Lakhan Ram, one of the accused, on the other. A proceeding under Section 148, Criminal P.C., had followed, and while it was pending a dafadar had informed the thana how he had seen the petitioner go upon the disputed land with armed men; and upon this the Sub-Inspector had gone to the locality and arrested the petitioner under Section 151, Criminal P.C.