S.N. Deendwania, J. - (1.) Jangir Singh has preferred this revision against the order of Judicial Magistrate No 2 Hanumangarh, whereby cognizance against him was taken for the offence under section 302/109 I. P. C.
(2.) Briefly stated the facts relevant for the disposal of this revision are these. There is a country liquor shop of Indersen at village Baripura. On the evening of 22.9.1979 two groups were taking drinks at the shop. The one party consisted of P. W. Buta Singh and Darshan Singh deceased son of Budh Singh. The other party comprised of Jagrup Singh and Darshan Singh son of Jangirsingh. Some altercation ensued between deceased Darshan Singh son of Budh Singh and Darshan Singh son of Jangir Singh. Jagroop Singh son of Jangir Singh after conferring with his brother Darshan Singh son of Jangir Singh went to his house. While Praja Singh, Darshan Singh son of Budh Singh and Darshan Singh son of Jangir Singh continued their drinks. Some further abuses were exchanged between theparties. Some how the dispute was settled and Darshan Singh deceased with Buta Singh left for the house. Darshan the liquor shop followed them. When they reached at a distance of about 225' from Singh accused the party saw Jagroop Singh accused and Smt. Baldeo Kaur mother of deceased Darshan Singh coming from the opposite direction. Smt. Baldeo Kaur was entreating with Jagroop Singh to spare her son Darshan Singh. However Darshan Singh accused lit his torch and Jagroop Singh accused fired his gun which hit deceased Darshan Singh resulting in his death. Praja Singh ran and informed Budh Singh of the incident, They came to the scene of incident. A chowkidar was kept near the dead body of Darshan Singh and on the same night at 10.05 Budh Singh lodged the F. I. R. in police station, Sangaria. However, these are not the full facts of the case. It was , also mentioned in the F. I. R. that there was long standing enmity between Budh Singh and Jangir Singh. Budh Singh after hearing the 'rola' asked his wife Baldeo Kaur to bring their son Darshan Singh from the liquor shop. Baldeo Kaur left for the liquor shop. In the way Baldeo Kaur saw Jangir Singh and his son Jagroop Singh armed with the guns. Jangir Singh went towards his house while accused Jagroop ' Singh proceeded towards the liquor shop. One Jagroop Singh witness told Baldeo Kaur that he had heard Jangir Singh exhorting his son accused Jagroop Singh to kill Darshan Singh deceased. The police registered the case and afrer completing the investigation filed a charge sheet against accused Jagroop Singh and Darshan Singh only and it further appears that a final report was given against Jangir Singh. Aggrieved by this Budh Singh filed a protest petition against Jangir Singh in the Court of Judicial Magistrate No.2 Hanumangarh who registered the petition as a private complaint and recorded the statement of Budh Singh under section 200 and the statement of witness Jagroop Singh and Baldeo Kaur under section 202 Cr. P. C. Thereafter the Magistrate issued non-bailable warrants against Jangir Singh after having satisfied himself that there was enough material for proceeding against Jangir Singh also. The police challan and the private complaint were consolidated. Against this order dated 26. 11. 79 of the learned Judicial Magistrate, this revision has been preferred.
(3.) I have heard the learned counsel for the petitioner, the learned Public Prosecutor and Mr. K. C. Gaur learned counsel for the respondent Budh Singh and perused the record of the case carefully. Lengthy arguments were advanced and various authorities were cited. As to the scope of the revision in such cases all of them may not be noticed because the law appears to be well settled by the Highest Court of this land as would be evident from the observations made in the following cases:- 1. Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others (AIR 1976 S.C. Page 1947): "Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside : (1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused , (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused , (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible , and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like." 2. Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar and another (AIR 3960 S.C. P. 1113): "It is manifestly dear from the provisions of S. 203 that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry. The section itself makes that clear, and it is not necessary to refer to authorities in support thereof. But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment he is not fettered in any way except by judicial considerations , he is not bound to accept what the inquiring officer say, nor is he precluded from accepting a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not If the Magistrate has not misdirected himself as to the scope of an enquiry under S. 202 and has applied his mind judicially to the materials before him, we think that it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment. What bearing such a plea has on the case of the complainant and his witnesses, to what extent they are falsified by the evidence of other witnesses all these are questions which must be answered with reference to the facts of each case. No universal rule can be laid in respect of such questions.;