P.N. Goel, J.
1. This is an application under Section 482, Cr.P.C.
2. There is Mehra Silk Mills in the city of Varanasi. There was dispute in respect of this Mill between Mehkana Chand Mehra and his son Tilak Raj Mehra. On one side and Radha Krishna Mehra, opposite party No. 2, which gave rise to a case under Section 145, Criminal P. C. On 19-2-1970 the Magistrate drew a preliminary order under Section 145(1) and considering the case as one of Emergency, appointed Kashi Nath, Godown In-charge, Mehra Silk Mills as Supurdar of the Mills. It was directed in the order that the Mill would not be closed by the Supurdar and would be run by him so that the interests of the workers would not suffer, A copy of this order has been filed by opposite party No. 2 today. On 14-2-1975 Radha Krishna Mehra, opposite party No. 2, filed a complaint before the Chief Judicial Magistrate, Varanasi, against Kashi Nath, Tilak Raj, applicant, Mekham Chand Mehra, Om Prakash and Kishan Chand under Sections 406, 408 and 420, I. P. C. The complaint was transferred to the court of Sri S. P. Verma, Special Judicial Magistrate. The special Judicial Magistrate passed order summoning Kashi Nath and Ors. A revision was filed against this order. By order dated 3-8-1977 the Additional Sessions Judge dismissed the revision saying that the order of the Magistrate was an interlocutory order. Therefore, this petition has been moved in this Court.
3. The allegations of the complaint are that in criminal case under Section 145, Cr.P.C. the mill was attached and given in supurdgi of Kashi Nath, that the complainant moved an application for the removal of Kashi Nath as he was in collusion with Tilak Raj, Lalta Prasad and Mehkam Chand, that the Magistrate took no action on this application, that the mill had machines of considerable worth and about 150 saris per day were used, to be prepared in it, that Lalta Prasad was a friend of Mohkam Chand, that Vidya Prakash and Om Prakash were related to Mohkam Chand, that Kishan Chand was also related to him, that Kashi Nath, Supurdar, appointed Tilak Raj as Manager of the Mill, that Kashi Nath had not furnished any accounts either to the complainant or to the Magistrate, that the accused persons realised a large sum of money from many persons in the name of the Mill, that they sold old and new goods of the mill, that they realised provident fund, bonus of the labourers, that in this way the accused persons had misappropriated a sum of Rs. 20 Or 25 lacs and that to save their skin, Kashi Nath filed a complaint under Sections 406 and 408, I. P. C. against the accused persons 3 to 5 and 7.
4. It will be seen from the above that Kashi Nath came in possession of the mill on being appointed by the criminal court as Supurdar. The Magistrate had directed him to run the mill. There is no other condition in the order of the Magistrate under which Kashi Nath was under an obligation to give accounts either to the complainant or to the Magistrate's court. As Kashi Nath was appointed Supurdar and directed to run the mill, he or persons under him would have realised the price of the goods of the mill and other articles. In these circumstances it is difficult to hold that the accused persons had committed any offence of criminal misappropriation or cheating. The remedy of the aggrieved person lies in the civil court. Therefore, the Magistrate was not justified in summoning the accused persons for the offences punishable under Sections 406, 408 and 420, I. P, C. The order of the Additional Sessions Judge that the order of the Magistrate was interlocutory in nature it wholly erroneous. The Additional Session Judge should have seen whether the allegations of the complaint made out any offence and in case he came to the conclusion that no offence was made out in the circumstances of the case, he should have set aside the order of me Magistrate. No person can be summoned by a criminal court unless prima facie there is an offence against him. The point involved goes to the root of the case and relates to the competence of the Magistrate to take cognizance of and to proceed with the case. Hence, the order of the Magistrate was not an interlocutory one.
5. In the result the application is allowed. The order of the Additional Sessions Judge dated 3-8-1977 is set aside and the criminal proceedings pending at the instance of Radha Krishna Mehra opposite party No. 2, against the accused persons before the Magistrate are quashed.