1. These are we applications for the revision of certain orders passed by the learned Sessions Judge, Patehpur, on 3rd December 1927. The facts are that a zamindar, Khan Bahadur Inayat Husain, is said to have sent certain servants of his to fetch labourers from the complainant. The servants are said to have gone and fetched the labourers forcibly. This led to a certain amount of violence and fighting.
2. The police investigated the case and challaned the servants (who are the applicants in this Court) under S-147/452, I.P.C., but they did not challan the zamindar Khan Bahadur Inayat Husain, nor did they challan anyone for dacoity under Section 395, I.P.C. The complainants also made a complaint to the Magistrate charging the applicants with dacoity in addition to the offence mentioned, and since it was alleged that in the course of the fight one of the accused seized a golden chain from the neck of one of the complainants, they also charged Inayat Husain with abetment of causing simple hurt. The Magistrate took some evidence under Section 202, but found the case insufficiently proved and probably false, against Inayat Husain, and dismissed the complaint against him under Section 203, Criminal P.C. He also disbelieved the story about seizing the gold chain (as the police had done) and refused to proceed further with the charge of dacoity. In short the Magistrate found that the Police were right in refusing to prosecute Inayat Husain, and in prosecuting the others on charges under Section 147/452, I.P.C. only.
3. The complainants then applied in revision to the learned Sessions Judge who passed the orders complained of. The first order is that Khan Bahadur Inayat Husain be summoned to answer the complaint;. The learned Sessions Judge apparently takes the view that if any person makes a complaint against an accused person that the Magistrate is bound to summon the accused if there is any evidence to support the complaint even though the Magistrate finds the evidence unsatisfactory and believes the complaint to be false.
4. In the present case I think the Magistrate was fully justified in dismissing the case under Section 203 as against Inayat Husain who was only said to be standing at a distance saying 'beat and seize them.' The Magistrate found this story improbable, not supported by reliable evidence. I see no reason to disagree with that finding. Moreover the only order which the learned Sessions Judge could have passed in revision under Section 436, if he has held that the Magistrate was unjustified in dismissing the complaint under Section 203, would have been to direct the Magistrate to make further inquiry into the complaint. The order passed by the learned Sessions Judge is not to this effect but directs the Magistrate to summon Inayat Husain to answer the complaint. In my opinion the learned Judge had no jurisdiction to pass such an order. But the Magistrate might have been directed to take further evidence under Section 202, but he could not legally be compelled to summon the accused when in his judgment there was no sufficient ground for proceeding against the accused.
5. The order passed by the learned Sessions Judge on the same date which is also the subject of an application for revision, is to the effect that all the witnesses whom the complainants want to produce, must be examined irrespective of the fact that the police who had challaned the case, do not want to produce them. It appears that when the police challaned the case the Magistrate let the police conduct the case like an ordinary police challan and examined the witnesses sent up by the police as is usual in such cases. After these witnesses had been examined, the complainants wanted to produce a whole lot of other witnesses, who had not been summoned by the police and whose evidence was unnecessary, in the opinion of the police and in the opinion of the Magistrate.
6. I think the learned Sessions Judge's order interferes too much with the discretion conferred upon the Magistrate by law Section 252. When the Magistrate trying the case is of opinion that it is unnecessary to summon a certain witness to the prosecution, then I think the Sessions Judge should not compel the Magistrate except for most cogent and exceptional reasons to summon the witness. In the present case I see no necessity for interfering with the Magistrate's discretion. In my opinion this order also must be set aside.
7. I accordingly allow the application, and set aside both the orders complained of.