K.B. Panda, J. - (1.)THIS is a criminal revision filed by the complainant on the background of facts stated hereinbelow.
The Petitioner on 30 -5 -1970 filed a complaint (No. 10. C. 53 of 1970) under Section 408, Indian Penal Code against the opposite party substantially alleging criminal misappropriation of articles worth Rs. 8,000/ - and odd. The opposite party accused was, according to the complaint petition, a servant engaged by the Petitioner in his hotel on a salary of Rs. 200 - per month. A written agreement dated 11 -1 -1969 was executed as evidence of the same. The Petitioner's grievance is that the opposite party did not render accounts and misappropriated the articles left in his charge. The Sub -Divisional Magistrate was evidently not satisfied with the complainant's case and so ordered for an inquiry under Section 202, Criminal Procedure Code, and finally on 7 -9 -1971 dismissed the complaint under Section 203, Criminal Procedure Code. Being aggrieved by that order of dismissal, the Petitioner preferred Criminal Revision No. 58 of 1971 before the Sessions Judge, Sambalpur. Late R.N. Dhalasamanta the then Sessions Judge of Sambalpur -vide his order dated 23 -11 -1971 allowed the revision and directed the Sub -Divisional Magistrate to take cognizance of the offence under Section 408. Indian Penal Code.

(2.)IN the meanwhile, the Petitioner had lodged information with the Police on 21 -9 -1971 on the identical facts. The Police on 3 -3 -1972 charge -sheeted the opposite party under Section 408, Indian Penal Code. It may be mentioned here that the Sub -Divisional Magistrate took cognizance of the offence under Section 403, Indian Penal Code on 1 -12 -1971, as directed by the Sessions Judge. Again the Sub -Divisional Magistrate took cognizance of the same offence as per the charge -sheet submitted by the Police. Summonses were issued against the opposite party in both the cases. While the matter stood thus, the complainant filed a petition for tagging up his complaint petition along with the police case. The Sub -Divisional Magistrate did so, vide his order dated 30 -5 -1972, and transferred the cases for disposal to another Magistrate, who accordingly followed the procedure laid down for police cases under Section 251 -A, Criminal Procedure Code. He perused the police records and on 12 -10 -1972 discharged the accused opposite party under Section 251 -A(2), Code of Criminal Procedure as he found that there was no sufficient cause for framing of a charge and that the dispute was of a civil nature. As against that order, the Petitioner filed a Criminal Revision (No. 3 of 1972) on 18 -11 -1972 before the Additional District Magistrate (Judicial), Sambalpur, but the same was finally dismissed on 19 -3 -1974.
As against that dismissal order, this is a second revision petition filed here by the complainant. In ordinary course, it came up before a single Judge who, referring to some conflicting decisions regarding taking up of cognizance of cases on private complaint as wen as on police report, has referred the matter to a Division Bench formulating three questions. This is how the matter is before this Bench. We are not at all persuaded to answer the questions posed for that would be purely academic in the context of admitted facts stated below.

(1) The complainant based his case on a written agreement and the substance of his grievance was that the opposite party, contrary to the terms of the agreement, did not render accounts and misappropriated some of his articles. As it appears, the opposite party's case was that he had not been paid his salary for two years. In this background the complaint petition, in out opinion, was rightly dismissed on 17 -9 -1971 as one of civil nature. The Petitioner did not disclose the fact of rejection of his complaint petition to the police and lodged an information on the same facts on 21.9 -1971. This shows the mala fides 'of the Petitioner.

(2) The then Sessions Judge committed an error in directing the Sub -Divisional Magistrate to take cognizance under Section -108, Indian Penal Code. The only order that he could have passed was for further inquiry and not directing cognizance to be taken under a particular section of the Indian Penal Code. So directed by the appellate Court, the Sub -Divisional Magistrate willy -nilly took cognizance of the offence under Section 408, Indian Penal Code on 1 -12 -1971.

(3) The Police on the usual course submitted charge sheet on 3 -3 -1972 and cognizance was taken. The Magistrate till he took cognizance under the direction of the Sessions Judge had no knowledge that the complainant had lodged an information at the Police station which was under investigation. Again when he took cognizance for a second time on police report on the same facts, there is nothing on record to show that he was made aware that he had already taken cognizance of the offence on the basis of a complaint filed by the Petitioner.

(4) Anyway while both the matters were sub -judice the complainant himself filed a petition before the Sub -Divisional Magistrate for taking up both the cases together. His prayer was allowed and thus the complaint case and the G.R. case were tagged together. Thereafter the procedure laid down for the G.R. cases, that is, Section 251 -A, Criminal Procedure Code, was followed and the transferee Magistrate on a perusal of the police records found no prima facie case for framing of a charge as it was of a civil nature and consequently discharged the accused opposite party. Thus the discharge order governs both the complaint case as well as the G.R. case. The police did not come up in revision against the discharge order in the G.R. case.

But the complainant took the matter in revision before the A.D.M. (J) who dismissed it. The operative portion of the order is thus:.

Section 251 -A, Sub -clause (2). Code of Criminal Procedure provides that in framing charge under Section 25l(A) the Court is entitled to consider only the documents referred to in Section 173. It further provides that an opportunity should be given to the prosecution and the accused of being heard. If the Magistrate comes to the conclusion that there is no reasonable R basis or foundation for the charge against the accused he should discharged the accused. When we look to the scheme of Section 251(A), Criminal Procedure Code, it appears that the Provisions of Sub -sections (1) and (2) are in the nature of enquiry before the trial. The learned Court below after due compliance with the requirement of Sub -section (2) of Section 251(A), Code of Criminal Procedure discharged the accused and there is no point in directing a further enquiry into the j case. I would have interfered with the order if the accused would have been discharged by the trying Magistrate in disregard to the provisions of Sub -section (2) of Section 251(A), Criminal Procedure Code. In the result the revision is dismissed.

(3.)AS against this order passed on revision the present second revision was filed on 22 -7 -1974. The office report was that there has been a delay of 558 days in filing the revision petition. This is evidently on the basis of the discharge order passed by the Sub -Divisional Magistrate. Even if the dismissal order of' the A.D.M. (J) be taken into consideration, yet the revision is time barred. On 5 -9 -1974, the learned single Judge passed the following order:
Heard.

The delay in filing the criminal revision, is condoned.

Issue notice of admission and hearing.

Mr. Mohanty is permitted to add a new ground in the revision petition as ground No. 3 as stated in his memo dated 4 -9 -1974.

Evidently the delay was condoned without notice to the opposite party.