Mahendra Dixit vs State of Rajasthan

Guman Mal Lodha, J.—This is a criminal revision petition u/s 401 Cr. P.C. read with Section 482 Cr. P.C.

This revision petition is directed against an order of the Magistrate dated 7-51980 in which he directed that the SHO who has sent the complaint without investigation should be prosecuted for offence under Sections 188, 217, I.P.C. and 29 of the Police Act.

This is one of those cafes where clearly the process of the court has been abused by the Munsif Magistrate in hot haste and immature understanding of the law and facts. It is typical type of rashness exhibited by the Munsif Magistrate.

4 The facts may be noticed in brief. A criminal case was filed by one Hurmat Umar u/s 379, I.P.C. The complainant was Chirmoli and the accused Hurmat Umar and Ors. The offence alleged was under 379, I.P.C. regarding taking away of some crop. This complaint dated 12-4-1979 was registered by the Magistrate and sent in criminal to the SHO for investigation u/s 156(3) of the Cr. P.C. and report of the result of the investigation to be sent by 2-5-1979. This order was passed on 12-4-1979.

It appears that on 13-4-1979 the SHO concerned sent the complaint in original with the endorsement that the complainant has moved an application before him mentioning that this particular crop was of Rehman and he took it. After the filing of the complaint when the complainant went back to his house he returned the portion or the share of the crop and therefore, he does not like to proceed with the case.

The SHO requested the learned Magistrate to issue necessary direction as to what should be done as after the receipt of this application he prima facie feels that no further investigation by the police is required. He in the last requested that if it is approved then the complaint may be consigned to the record.

It appears that the Munsif Magistrate on reading of this order felt obsessed by unwarranted exalted sense of authority of the Magistrate and feeling offended by the non-compliance of his order, he directed that the SHO must be prosecuted.

The learned Counsel argued this case and pointed out that what ever might be the order of the Magistrate but so far as the direction of the prosecution of the SHO is concerned, it is wholly uncalled for and is gross abouse of process of court. I have got no hesitation in expressing agreement with this submission of the learned Counsel. The SHO was justified in making a reference to the Magistrate in the changed circumstances. The Magistrate could have insisted on investigation or could have also dropped the proceedings.

The proceedings have not commenced so far. No cognizance was taken. No notice was issued to the accused and, therefore at this preliminary initial stage if the complainant was not anxious to prosecute the matter and that regarding taking away of the crop from a field, neither the Magistrate nor the SHO should have exhibited this unwarranted sense of authority. The SHO rightly pointed out that the changed circumstances warranted that no further investigation would be done.

Even if it is assumed that the Magistrate was of the view that once a complaint is sent for investigation u/s 156(3) the SHO should send report only after investigation, a proposition for which I am very doubtful because on every change of circumstances the Magistrate can be apprised of it; even then there was no occasion for prosecution of the SHO. I am convinced that the learned Magistrate went beyond his jurisdiction and acted in gross abuse of the process of court by directing prosecution of the SHO. Consequently, the impugned order dated 7-5-1980 is quashed. The revision petition is allowed.