MOHINI KAPUR, J. - (1.) THE Chief Judicial Magistrate, Bharatpur, by his order dated 6. 9. 1985, took cognizance against the petitioner for the offence under Section 453 I. P. C. THE petitioner challenged this order in a revision before the Additional Sessions Judge No. 1 Bharatpur, who dismissed the revision holding that there was sufficient material before the trial court for taking cognizance. Against this order he has preferred this miscellaneous petition under section 482 Cr. P. C.
(2.) THE learned counsel for the petitioner has contended that the dispute in this case is between father and son and it is of a civil nature, for which a civil suit is already pending between them. According to him the parties should not be dragged to a Criminal Court, when the dispute is of a civil nature and has to be ultimately decided by the Civil Court. In this connection, reliance has been placed on (1) AIR 1979 S. C. 850, and (2) 1982 Cr. L. J. 1393 besides (3) AIR 1923 Lahore 329 and 145. Referring to Kurda Ram V. State of Raj. (4), it has been contended that the Magistrate at the time of taking cognizance has not made any mention of the final report submitted by the police and this shows that the Magistrate did not apply his mind while issuing process. In this case the order of cognizance was set-aside and the complaint was dismissed as the court was of the view that there was not even a remotest possibility of the accused being convicted for the offence alleged against him. Prosecuting a person when there was not even a remote chance of conviction was held to be abuse of the process of the court. The learned counsel for the non-petitioner on the other hand has contended that during the pendency of the civil proceedings the petitioner broke the lock of the disputed property and took possession over it and it became necessary to start separate criminal proceedings. According to him, this contention of the complaint is supported by evidence and a Criminal act, should not be allowed to go unfurnished (sic unpunished) merely because the civil dispute is pending between the parties. At this stage, I do not consider it proper to look into the evidence, which was recorded under Section 200 and 202 Cr. P. C. in order to find out whether there were grounds for proceeding against the petitioner. This fact has been looked into by the re-visional court and a petition under Section 482 Cr. P. C. cannot be allowed in order to allow a second revision by the same party for which there is a specific ban under Section 397 Cr. P. C. Here the only question which can be seen is whether proceeding to issue process by the Magistrate, without taking into consideration the final report, submitted by the police can be said to be proper or not. At the time when cognizance is taken the Magistrate is not assisted by the accused or his counsel so as to put before the Court as to what is the version of the accused. The Magistrate simply proceeds on basis of the material, which has been produced before him and if he finds that there is sufficient ground for proceeding, he can take cognizance. An opportunity is given to the accused to submit his case at the time of framing charge and if he is able to satisfy that there is no sufficient ground for prosecuting him, he has to be discharged. Hence at the time of taking cognizance, the material of the complaint alone is to be considered while at the time of framing charge, the accused has an opportunity of putting up his case, In this case when he has already gone in revision before the Additional Sessions Judge, and an order has been passed against him, it would not be proper for this Court to allow any relief to him under Section 482 Cr. P. C. on the ground that there is an abuse of the process of the Court. He can appear before the trial court itself and furnish material to show that there are no grounds for proceeding against him and that the dispute is of purely a civil nature. This petition is, therefore, dismissed. The record of the court below be returned immediately. The parties are directed to be present before the trial court on 1. 12. 1987. . ;