DINKAR LAL MEHTA, J. - (1.) HEARD learned Counsel for the parties. Perused the order dated 8 -2 -1983 passed by Shri R. H. Ajwani Sessions Judge, Sikar, in Criminal Revision Petition No. 48/82 by which he set aside the order dated 8 -3 -1982 passed by the learned Judicial Magistrate, Fatehpur in Criminal case Hardayal v. Babulal and Ors.
(2.) LEARNED Judicial Magistrate vide his order dated 8th March, 1982 took cognizance against the accused Babu Lal and others. He directed that the summons be issued. Revision petition was preferred against the said order which was accepted by the learned Sessions Judge. Mr. Surendra Singh Sunda appearing on behalf of the present petitioner submits that a cross case is pending and the judgment will adversely affect their client. He further submits that the learned District Judge has acted without jurisdiction in discussing the evidence. He submits that the jurisdiction of the learned Sessions Judge was only to find out whether there is a prima facie case or not. Learned Sessions Judge has taken the view that it is necessary to consider whether a conviction can be made in such case or not. lie has relied upon the case of Nirmaljit Singh v. State of West Bengal and Ors. : [1973]2SCR66 in which the Hon'ble Supreme Court has held as under: the word 'sufficient ground' used in Sections 203 and 209 mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree and do not mean sufficient ground for the purpose of conviction. The test is whether there was sufficient ground for proceeding and not whether there is sufficient ground for conviction, and where there was a prima facie evidence, even though, the person charged of an offence, the complaint might have defence, the matter had to be left to be decided by an appropriate forum at the appropriate stage and issue of process should not be refused. Unless, therefore the Magistrate finds that the evidence led before him is self -contradictory or intrisically untrustworthy process cannot be refused, if that evidence makes out a prima facie case. In a revision against such refusal, the High Court has also to apply the same test.
(3.) HE has also relied upon the case reported in : 1982CriLJ629a . Their Lordships of the Supreme Court have held that the Magistrate should ordinarily issue the summons if he finds prima facie case. If eventually the learned Magistrate comes to the conclusion that no offence is made out, he may discharge the accused or acquit the accused. Their Lordships further set aside the judgment and held that the order issuing summons should not be disturbed.;