HAROON ABDULLA KACHHI Vs. GAJADHAR SUKHDEO MARWADI

JUDGEMENT

(1.) THIS is an application to revise an order dated 12th July 1939 passed by the Additional District Magistrate, Akola. The non-applicant Gajadhar filed a complaint on 9th March 1939 against Krishnalal, Jethalal and the applicant alleging offences under Sections 421 and 424, Penal Code. The Magistrate examined the complainant and registered the case as against the first two and dismissed it against applicant. The complainant moved the Additional District Magistrate under Section 436, Criminal P.C, for revision of that order and succeeded in getting an order for further enquiry. The Magistrate had examined some witnesses before issuing process against the applicant and dismissed the complaint as he was not satisfied that the evidence sustained the complaint. The complainant brought the matter in revision again before the Additional District Magistrate, who passed the order under consideration directing the trying Magistrate to proceed against the applicant under Section 204, Criminal P.C. The learned Additional District Magistrate has manifestly misdirected himself on the point of law relating to the power of the Magistrate under Section 202, Criminal P.C. He seems to be under the impression that if the complaint is made against some individuals jointly the Magistrate has no discretion left to issue processes against some and postpone issue of processes against the others. The fact that the Magistrate had issued processes against two of the accused persons would not deprive him of his power to make a preliminary enquiry in respect of the offence alleged against the third accused under Section 202, Criminal P.C. The principle appears to be so plain as not to call for any authority for its confirmation. Under Section 436, Criminal P.C, the 'Additional District Magistrate could only order enquiry into a case which had been dismissed under Section 202, Criminal P.C, but he could not compel the Magistrate to issue process and make an enquiry for the purpose of framing a charge.

(2.) THE Additional District Magistrate's order being erroneous in law must be set aside. Nevertheless, it is pertinent to observe that as the matter was properly before the Additional District Magistrate under Section 435, Criminal P.C, he had the power to go into the merits of the case to satisfy himself as to the correctness and legality or propriety of the order passed by the Magistrate. The Additional District Magistrate did not however examine the evidence on its merits. If he did so, and he was of opinion that the Magistrate had misconceived the evidence recorded by him, he would certainly have been right in even ordering the Magistrate to issue process against the applicant. The Additional District Magistrate did not, however, go into the merits of the case. This case is now remitted to the Additional District Magistrate, Akola, for further inquiry into the merits of the evidence on the record and pass such order according to law as he may deem reasonable and proper.