- (1.) THESE are two revisions arising out of the fame matter, and I propose to dispose of them by a single order.
(2.) THE circumstances out of which these revisions arise may be shortly stated as follows. THE opposite party Bhanaram filed a complaint against the petitioners on the 23rd September, 1955, under sec. 452 I. P. C. His allegations were that there was a dispute between him and the petitioners about the possession of a well named Bhimadia and that the petitioners had taken possession of the well on the morning of the 19th September, 1955 (correspoinding to the Bhadwa Sudi 3, Svt. 2012) and that all the eight petitioners armed with lathis came to his house and same evening at about 6 p. m. broke open the main door of the house and hurled out a threat that they would do him to death if he would take any legal proceedings against them as regards the possession of the field in dispute. This complaint was filed in the court of the First Class Magistrate No. 3, Jodhpur. It appears that the Magistrate examined the complaint on the 1st November, 1953. Apparently he was not satisfied with the truthfulness of the complaint and so he postponed the issue of process and directed the Station Officer, Mahamandir, to make an inquiry into the matter and submit his report. THE Station Officer submitted his report on the 10th December, 1955. THE report was that it was true that litigation was going on between the parties about the possession of the field in question and that the opposite party had also made an application under sec. 145 Cr. P. C. against the petitioners with respect to the same field and that application was eventually dismissed. THE Police Officer further pointed out that Bhanaram had not made any report in the Police, nor did he file a report in the village Panchayat. He concluded by saying that Bhanaram had filed this complaint against the petitioners merely to harass them, It appears that Bhnanaram, apart from examining himself, produced four witnesses, namely Annaram, Jairam, Kanwar-ram and Hanutram before the Police Officer. THE case then came up before the Magistrate on the 29th December, 1955, and by his order of the same date, he dismissed the complaint under sec. 203 Cr. P. C. THE order passed by the Magistrate is a brief one. He referred to the report of the police officer and thought that a false case had been brought up against the petitioners out of enmity. THE Magistrate also said that the complainant Bhanaram had not advanced any sufficient reason why he had not made the report to the police. He also referred to the circumstances that no injury whatsoever had been caused to the complainant. In these circumstances he came to the conclusion that no further action was necessary and he dismissed the complaint accordingly. THE complainant Bhanaram then went in revision to the learned Sessions Judge, Jodhpur. THE learned Judge by his order dated the 29th June, 1956, set aside the order of the Magistrate and gave the direction that 'he will have the case registered on its original number and after notice to the opposite party proceed with it according to law. ' Earlier in his order he observed that the Magistrate had failed to take into consideration the statements of the witnesses recorded by the Police Officer and that he had not discussed that evidence. THE learned Judge further went on to say that the evidence collected by the inquiring officer had to be thrashed out in court and as it had not been jo thrashed out, it would only be, after a proper consideration of that evidence, that a judicial order could have been made by the Magistrate. According to the learned Judge, the Magistrate had not done so, and, therefore, he set aside the order of dismissal passed under sec. 2 3 and remanded the case back to the Magistrate with the direction which has already been set out above. Revision No. 134 of 1956, has been filed against this order. THEreafter the case went back to the Magistrate and by his order dated the 30th July, 1956, he directed processes to go against the accused, and the case was ordered to be put up on the 7th September, 1956. On the 7th September, 1956, an application was moved on behalf of the accused petitioners that they should not have been summoned, as no case whatsoever had been made out against them. THE Magistrate turned down this application and directed the complaint to produce his evidence on the next date of hearing. Revision No. 135 of 1956, has been filed against the last mentioned order. The main contentions raised by learned counsel for the petitioners before me are two in number. In the first place it is urged that he learned Sessions Judge had fallen into error in giving the direction that the Magistrate should proceed with the case after notice to the petitioners. It was further contended in this connection that the learned Sessions Judge had himself observed in the earlier part of his order that the Magistrate should have carefully con-sidered the evidence of the witnesses produced by the complainant daring the course of the enquiry and that it is only when that was done that a proper judicial order could have been passed, and while this clearly indicated that the learned Sessions Judge himself had not taken the trouble of thrashing out the evidence he had clearly gone out of his way to direct, and in law had no jurisdiction so to direct, that process should issue to the petitioners before the result of the enquiry had been so determined. This contention to my mind, is not without force. The learned Sessions Judge seems to have forgotten that he was dealing with an order dismissing the complaint under sec. 203 Cr. P. C. and that the petitioners were no party to the inquiry under sec. 202 Cr. P. C. and the Magistrate had declined to issue process against the accused and eventually dismissed the complaint. I have no hesitation, therefore, in corning to the conclusion that the order of the learned Sessions Judge directing notices to issue to the accused cannot be sustained. All that the learned Judge could have directed in the exercise of his revisional jurisdiction under sec. 436 Cr. P. C. was further inquiry into the complaint. There is ample authority for the view that when a revising Judge orders a further inquiry under sec. 436 Cr. P. C. in a case of this kind, he has no jurisdiction to give any direction fettering the discretion of the lower court in any way. See Emperor vs. Mating Ba Thon (1) and Inayat Hussain vs. Emperor (2) in this connection. The correct position in law is that in an order for further inquiry passed under sec. 436, the revising court cannot fetter the discretion of the Magistrate as to the manner in which he should conduct the inquiry, and the Magistrate is free to exercise the power that he possesses in that behalf according to law. It follows that in holding the further inquiry, it would be open to the Magistrate to consider again the question whether the complaint should be dismissed or the case should be proceeded with, and if he still comes to the conclusion that the complaint deserves to be dismissed, there is nothing to prevent him from passing a fresh order of dismissal of the complaint. If on the other hand, the Magistrate comes to the conclusion that there is sufficient ground for proceeding with the complaint, he must then issue process against the accused, but not until the whole matter has been reconsidered as ordered by the revising authority. I have no hesitation, therefore, in coming to the conclusion, in this state of the law, that the order of the learned Sessions Judge whereby he held, on the one hand, that the Magistrate had not applied his judicial mind to the evidence before him, and, therefore, could not have dismissed the complaint and, on the other hand, directed notices to issue to the petitioners without himself determining the effect of the enquiry under sec. 203 Cr. P. C. is an order which is self-contradictory and is indeed without jurisdiction. The second contention is (and that is based upon the first) that the consequent order of the Magistrate by which he registered the complaint and directed process to issue against the accused without applying his mind again to the material on the record, or, in other words without making the further enquiry, was quite unlawful. From what I have already stated above the answer to this contention can only be in the affirmative. The attitude of the learned Sessions Judge in its essence appears to have been that the Magistrate had not applied his mind to the evidence before him and so his order dismissing the complaint was bad and, therefore, what the Magistrate should have done was to have applied his mind to the evidence before him or in other words he should have reconsidered the material on the record, and then it was for him to decide whether to register the complaint and issue process or to dismiss it again after properly giving his reasons for doing so. He did not do this and simply registered the complaint and ordered process against the petitioners. Consequently, I have no hesitation in holding that the order of the Magistrate registering the complaint and issuing process to the petitioners without making the further inquiry cannot also be maintained and that order must be set aside. The next question that arises is what order this Court should make in the circumstances of the case. It seemed to me at first sight that this Court should send the case back to the Magistrate directing him to pass a proper order in the light of the observations made above. Ordinarily I should have adopted this course. It was, however, earnestly represented to me on behalf of the petitioners that this course would mean an entirely unmerited harassment to them, and that if the learned Sessions Judge had even cursorily looked into the evidence before ordering further enquiry, he would, in all probability, not have passed the order which he did, and would not have interfered with the order of dismissal passed by the Magistrate in spite of the fact that it was a somewhat weak and not well-reasoned order. After careful consideration, I have thought it desirable in the interests of justice to accede to the prayer made on behalf of the accused petitioners, in view of the glaring circumstances of the case a disclosed in the complaint and the statements of the complainant's witnesses, as any body even casually going into them would not fail to be struck by them. The first circumstance in this case is that although the incident is said to have taken place on 19th of Sept. , 1953, the complainant filed his complaint on the 23rd September, 1955. There is no satisfactory explanation for this delay. The only explanation which has been offered by the complainant is that he was afraid of the accused petitioner, and, therefore, he dared not get out of his house for a period of two days. This explanation, to my mind, is utterly childish. Again, the case of the complainant was that as many as eight persons had come armed with lathis having made preparation to kill him and actually threatened to do so, and, strangely enough, not a scratch was caused to him. It is also alleged that they had forcibly broken open and thrown aside the main entrance door of his house, but none of his witnesses depose to this fact. Two witnesses are said to have witnessed the entire incident. These were Jiaram and Hanutram four persons were, however, produced before the police officer. I have carefully perused the statements made by them. In the first place, if Kishna and Kanwararam had been present at the time the incident took place, there is no reason why their names should not have been mentioned in the complaint. It is clear, therefore, that these witnesses were added latter on to pad up the prosecution case. No reliance can be placed on their evidence. So far as Hanutram and Jairam are concerned, even these persons did not say that the main entrance door of the complainant's house had been broken as the complainant himself would have us believe. Neither the complainant nor his witnesses have said a word to the effect that any injury whatsoever was caused to the complainant All that seems to have happened at the highest is that there was a sharp exchange of words between the complainant and some of the accused. This however, is entirely insufficient to make out a prima facie case under sec. 452 I. P. C , and it clearly appears to me that to allow this criminal litigation to go on in this state of things would mean nothing but utter harassment to the eight petitioners. It is true that there is bad blood between the accused and the complainant, but that is no reason to suppose in the circumstances of this case that the accused had for that reason, necessarily, or in all likelihood, made preparations for causing hurt to the complainant, and committed house trespass or put him in fear of hurt or assault. The truth probably lies the other way, and the complainant clearly appears to me to have brought forth a highly exaggerated complaint against the accused to satisfy his spite and is pursuing it because he lost his case under sec. 145 Cr. P. C. regarding this very field. Having regard to these circumstances, I am clearly of opinion that this is not a case in which process should issue against the petitioners and that the order passed by the Magistrate dismissing the complaint was in its ultimate analysis, correct though I would add that the Magistrate should have displayed greater case in giving the reasons which persuaded him to come to that conclusion. The result is that I allow both these revisions, set aside the orders of the learned Sessions Judge and the Magistrate, and hereby order that the complaint filed by Bhanaram against the present petitioners shall stand dismissed under sec. 203 C. P. C. . ;