MAHAVIR PRASAD VAIDHYA Vs. STATE

JUDGEMENT

(1.) THIS petition filed under section 482 Cr. P. C. has been preferred against the order dated 21. 10,91 passed by the learned Additional Sessions Judge No. l,sri Ganganagar camp Sri Karanpur, whereby while accepting the revision petition filed by complainant non-petitioner Arun Kumar, he set aside the order dated 21. 8. 89 of the learned Munsif & Judicial Magistrate,sri Karanpur dismissing the criminal complaint filed under sections 380 & 448 I. P. C. and directed the Magistrate to take cognizance against the petitioner on the basis of the evidence available on record.

(2.) I have heard the learned counsel for the petitioner and the learned Public Prosecutor. The impugned order directing the Magistrate to take the cognizance is patently illegal for the reasons mentioned hereinafter. Section 398 Cr. P. C. specifically lays down that on examining any record under section 397 or otherwise the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrate subordinate to him to make, further inquiry into any complaint, which has been dismissed under section 203 or sub-section (4) of section 204, or into the case of any person accused of an offence, who has been discharged. Hence, the learned Additional Sessions Judge while setting aside the order of the learned Magistrate could have simply directed him to make further inquiry into the matter, but instead he has directed the Magistrate to take cognizance against the petitioner on the basis of evidence on record, which was not relied by the Magistrate. Therefore, this part of the impugned order directing the Magistrate to take cognizance is positively against the provisions of section 398 Cr. P. C. and as such improper, illegal and without jurisdiction.