G.K. Misra, J.
1. Banchhanidhi Maharatha (Petitioner) filed a complaint on 25-11-64 under Sections 147 and 379. I. P. C. against Srinibash Paikroy (opp. party-1) and 17 others alleging that at about 6 A. M. on 28-11-64 they cut away the paddy which ho grew on the disputed land, Petitioner's case is that he looked after the properties of Orami Math in village Orami in Khurda Sub-division and cultivated the lands of the said Math On the date of occurrence, while he was absent from the village, opposite party No. 1 with the help of a large number of persons forcibly cut away the paddy. The complainant was examined on oath under Section 200, Cr. P. C. on 27-11-64 The complaint petition was sent to the officer in charge, Khurda Police Station for enquiry and report under Section 202. Cr. P. C. The Officer-in-charge examined the witnesses on behalf of the complainant and some of the accused persons. He perused a registered sale deed executed by one Luxmipriya Debi on 28-10-64 in favour of opposite party No. 1 The Officer-in-charge submitted a report on 28 4-66 after giving notice to the accused. The report was to the following effect.
'Srinibas Paikroy has purchased the alleged plots of land on 28-10-64 and thereafter he took the paddy shicves from the spot, but the complainant claims that he was in physical possession of the lauds in question. Hence I submit F. R. M. L. under Sections 148/379 I. P. C after closing up the investigation of the case.'
On 29-4-65 the complainant filed a protest petition alleging that the report submitted by the Officer-in-charge was contrary to the statements of the witness recorded by him which disclosed a prima facie case against the accused persons under Sections 147 and 379, T. P. C. He made a prayer that after perusal of the Case Diary, the police should be directed to submit a charge sheet On 10-7-65 the learned Magistrate passed the following order
Perused the Final Report and case diary of the police to whom the case was sent to investigate and to submit final form. The investigating officer has submitted Final Report on the ground that the case is of a civil nature
His finding is that the land in question on which the paddy stood, was purchased by accused Srinivas (A-1) on 28-10-64 with standing paddy crop from one Lakshmipriya Dasi of Orami Math by a regd. sale deed and that on the strength of that sale deed this accused cut and removed paddy. Thus, the conclusion arrived at by police is correct and i have got nothing to interfere. So the protest petition is dismissed. Against this order the criminal revision has been filed, it is clear that the Magistrate has not passed any specific order that the complaint petition was dismissed under Section 203. Ori. P. C. But his order dated 10-7-65 dismissing the protest petition and saying that the conclusion arrived at by police is correct, amounts, in essence, to dismissal of the complaint petition.
2. Mr. Ray advances the following contentions
(i) In dismissing the complaint, the Magistrate has mechanically followed the conclusion of the police in derogation to the principle laid down in Section 203, Cr. P. C.
(ii) The police acted contrary to law in examining opposite party No. 1 and his oral and documentary evidence to sec if there was A prima facie case.
3. Mr. Misra raised a preliminary objection that if a complaint is dismissed under Section 203, Cr. P. C., it is open to the complainant to invoke the revisional jurisdiction of the Sessions Judge under Section 436, Cr. P. C. whereunder he has the power to direct further inquiry and give complete relief to the complainant. Without initially invoking the powers of the Sessions Judge, it was not open to the complainant to invoke the concurrent jurisdiction of the High Court.
Mr. Ray combats the preliminary objection on the ground that the jurisdiction under Section 436 is concurrent and a party can approach the High Court without approaching the Sessions Judge. The prohibition, if any, is not legal but is one of practice, and that once the High Court has admitted the revision, dismissal on this ground would entail prejudice and hardship, and, as such, the revision should not be thrown out.
4. Mr. Ray's contention on merits is unassailable. The learned S. D. M. took cognizance of the offences mentioned in the complaint when he proceeded to take action under the various provisions of Chapter XVI of the Criminal Procedure Code by examining the complainant on oath (see AIR 1964 SC 1641, Jamuna Singh v. Bhadai Shah) He postponed the issue of process and directed that an investigation to he made by a police officer under Section 202 Cr. P. C. The police officer made the investigation and submitted his report This investigation is not one under Section 156(3). Cr P C. which lays down that am Magistrate empowered under Section 190 may order such an investigation into any cognizable case as referred to in Section 156(1) There is thus a clear distinction between an investigation by a police officer under the orders of a Magistrate under Section 166 (8) and that under Section 202, Cr. P. C. By the time the Magistrate orders investigation under Section 156(8), he has not taken congnizance of the offence while the investigation ordered under Section 202, Cr. P. C. is done after cognizance is taken. It is important to hear this distinction in mind as the nature of inquiry into the two investigations is completely different.
While making an investigation under Section 156(3) it is open to the police to examine the accused and also the oral and documentary evidence produced at his instance (see AIR 1961 SC 221). But in an investigation under Section 202, Cr. P. C., the accused has no right to take part in the proceeding nor has the police any jurisdiction to permit him to do so. In that regard no difference in principle can be made out in respect of an inquiry made by Magistrate or by a police officer under Section 202, Cr. P. C. The principle laid down in AIR 1963 SC 1430. Chandra Deo v. Prokash Chandra and AIR 1966 Orissa 64, Harekrushna v. Adikanda fully applies to an inquiry made by the police.
5. Under Section 203, Cr. P. C., the Magistrate before whom a complaint is made may dismiss the complaint, if after considering the statement on oath (if any) of the complainant and the witnesses examined on his behalf and the result of the investigation or inquiry under Section 202, he is of opinion that no sufficient ground for proceeding has been made out. In such ease, he shall briefly record his reasons for so doing. It is to be noticed that the Magistrate is to be satisfied whether there is sufficient ground for proceeding. Whether the evidence is adequate to support a conviction can be determined only at the trial and not at the stage of inquiry (See AIR 1966 Orissa 64)
Judged by the aforesaid tests, the impugned order cannot be supported. The police examined the complainant, Bhagirathi Sundara, Mena Maharatha, Mangu Maharatha, Bidyadhar Maharatha, Chakradhar Mabaratha, Anam Khadanga and Kakshman Maharaj. All of them supported the prosecution version that the complainant grew paddy on the disputed land and accused-1 with the help of others removed the same on the strength of the sale deed executed in his favour on 28-10-64. In (1965) 31 Cut LT 601, Binayak Swain v. Ramesh Chandara Panig rahi this Court pointed out that in cases where the alleged theft consisted of removal of the crop grown on the land, the most vital question to be investigated into is as to which of the parties had grown the crop. In majority of eases, this test would lead to a definite conclusion whether the claim of the accused is bona fide or a mere; pretence Thus the statement of the complainant on oath and the versions of the aforesaid witnesses examined for the prosecution would clearly lead to the conclusion that the complainant had a prima facie ease and the complaint should not have been dismissed under Section 203.
Opposite parties 1, 2. 4 to 10, 13, 14, 16 and 17 were examined by the police Besides them, Lakshmipriya Dasi, the vendor was examined. The opposite parties did not speak about the growing of paddy by opposite party-1. They only referred to the fact that the crop was removed by opposite party-1 as alleged by the prosecution after the sale. Most of them stated that they were not present on the spot. The only witness examined for them regarding the growing of crop was the vendor herself who stated that she had grown the crop. Even if the entire evidence before the police would have been taken into consideration, a prima facie case is made out for the prosecution that the complainant grew the crop which the accused removed. The impugned order does not at all indicate that the Magistrate applied his judicial mind !o the statements obtained during investigation by the police. His order is very cryptic and based on no appreciation of the real legal position either under Section 203. Cr. P. C. or in respect of the offence under Section 879. I. P. C The learned Magistrate has not also considered with reference to the statements of witnesses examined on behalf of the prosecution as to which of the accused were really present at the spot and took part in the act of removal of paddy Thus the Magistrate dismissed the complaint without giving reasons as required by Section 203, Cr. P. C. This error is of a kind which goes to the root of the mailer. Absence of reasons renders the order a nullity (See AIR 1903 SC 1430). In such circumstances it is open to a Court of Revision to direct a future inquiry Under Section 436, Cr. P. C. into the complaint which has been dismissed Under Section 203. Cr. P. C.
There has been controversy as to the nature of the further inquiry to be done by the' Magistrate. In (1888) ILR 15 Cal. 608, (FB), Hari Dass Sanyal v. Saritulla, the majority look the view that the further inquiry is confined to a rehearing upon the same materials which were before the Subordinate Magistrate, that is when no further evidence is forthcoming. In (1909) ILR 32 Mad. 220 (FB), Narayanaswamy Naidu v. Emperor, the majority were of opinion that further inquiry would include within its ambit not only reconsideration of the same materials, but also taking further evidence, if necessary, the entire matter having been left to the Magistrate according to the facts and circumstances of each case. In AIR 1931 Rang. 225 (FB) Emperor v Maungo Ba Thon their Lordships examined the conflict of authorities and observed as follows
'In holding the further inquiry the Magistrate will be at liberty to conduct the inquiry in his own way, provided he conforms to the provisions of the Code. For example, be can examine such persons (whether or not they were examined in the course of the previous inquiry) and taken such further or other steps for the purpose of ascertaining whether or not process should issue or a charge should be framed as are permitted by law, and as he deems to be admissable; or he may determine the matter upon a reconsideration of the same materials as were available when the earlier order of dismissal or discharge was passed in the light of the observations of the revising officer and at the conclusion of the inquiry the Magistrate will decide according to law whether or not process shall issue.'
These observations have my respectful concurrence and lay down the law correctly.
6. Mr. Ray's second contention that opposite parties 1/2, 4, to 10, 13, 14, 16, 17, and Lakshmipriya Dasi should not have been examined by the police is correct. The S. I. should not have received the sale deed by opposite, party No. 1. The principle has been discussed in para 4 of the judgment. When the case would go back for further inquiry, the learned Magistrate would exclude these materials from consideration in forming an opinion Under Section 202, Cr. P. C. whether there was sufficient ground for proceeding.
7. The preliminary objection of Mr. Mista is based on Section 436, Cr. P. C. which lays down that on examining any record under Section 435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him, to make, and the District Magistrate may himself make, or direct any subordinate Magistrate to make further inquiry into any complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204 or into the case of any person accused of an offence who has been discharged. The powers so conferred upon the High Court, the Sessions Judge and the District Magistrate are concurrent. Mr. Misra contends Unit once there is concurrent jurisdiction in several Courts, the petitioner must approach the inferior Court having the same jurisdiction. In exercise of his powers Under Section 436, the Sessions Judge or the District Magistrate has not to make any reference to High Court Under Section 438, Cr. P. C. He can finally dispose of the revision Under Section 436, Cr. P. C. in respect of mailers enumerated therein. Mr. Misra accordingly contends that when the Sessions Judge can give complete relief to the petitioner by directing further inquiry, the High Court should dismiss the revision application on the sole ground that the inferior Court having the concurrent jurisdiction had not been approached.
Mr. Ray, on the other hand, contends that the relief which the petitioners seeks in this case is not only for a direction for further inquiry, but also for issue of process Under Section 204, Cr. P. C. Though the Sessions Judge has power to direct further inquiry he has not power to direct issue of process, or cannot himself issue process in exercise of his revisional powers Under Section 436. Cr P. C. It is the High Court alone who can issue process or direct issue of process in exercise of its powers Under Section 439. Cr. P. C.
I am not inclined to accept this line of reasoning of Mr. Ray. Doubtless the Sessions Judge in exercise of his powers Under Section 436 cannot either issue process or direct issue of process. He can only direct further inquiry. This, by itself, would not justify the petitioner in not invoking the concurrent jurisdiction of the Sessions Judge. If such an argument is entertained, in no circumstance the jurisdiction of the Sessions Judge Under Section 436 is to be invoked.
A litigant can circumvent the approach to the Sessions Judge in a matter where he can finally dispose of the case by modulating the reliefs and by including a relief which the Sessions Judge is incompetent to grant. Thus the jurisdiction conferred upon the Sessions Judge Under Section 436 would he rendered nugatory. Moreover when the Sessions Judge directs a further inquiry, it is open to the Magistrate to issue process if on such inquiry he is satisfied that there is a prima facie case in support of the accusation.
In all such cases, therefore, the complainant must approach the Sessions Judge or the District Magistrate in the first instance. High Court will not entertain an application in relation to matter covered by Section 436, Cr. P. C. unless the party exhausts his remedy before the Sessions Judge or the District Magistrate. This interdict is not based on any rule of law but on the accepted salutary principle that when two authorities have concurrent jurisdiction, the inferior one must be first approached. The position of the petitioner does not improve merely because the revision has been admitted by the High Court. It is for the petitioner to know the legal position and invoke the proper jurisdiction The principle is different where in exercise of his revisional jurisdiction the Sessions Judge or the District Magistrate cannot finally dispose of the case but shall have to make reference to the High Court Under Section 438, Cr. P. C. There is conflict of authority on this aspect of the case The position has been well summarised in AIR 1956 Andhra 87. Ramayya v. Venkata, where all relevant decisions have been referred to. Their Lord ships observed thus-
'We should not be understood to have laid down that the High Court has not jurisdiction to entertain a revision in the first instance. The Criminal Procedure Code in terms expressly confers the jurisdiction. Nor do we say that it is an inflexible rule of law that under no circumstances should the High Court entertain a revision if the aggrieved party would not file a revision in the first instance in the inferior court. Nor do we intend to lay down any rule, which, directly or indirectly affects the undoubted inherent powers of the High Court to pass orders, to prevent grave and substantial injury to the parties.
But in our view, the salutary practice to be followed in this High Court should be that ordinarily the High Court would not entertain a revision unless the aggrieved party approached an inferior Court in the first instance and will not deviate from that practice except on special exceptional or extra-ordinary grounds. When there are not such grounds, the mere fact that a revision has been admitted by this Court cannot make any difference in the enforcement of the rule of practice, for the party, who with open eyes ignored the practice and filed a revision direct in the High Court, can not take advantage of the deviation from the rule of practice.'
I respectfully concur with the aforesaid observation subject to the rider that it would be confined to matters covered by Section 436, Cr. P. C. where the Sessions Judge or the District Magistrate can grant complete relief. It will have no application to cases where only a reterence is to be made to the High CourtUnder Section 438, Cr. P. C.
In this case, the petitioner should have approached the Sessions Judge in the first instance. If he had failed to get the necessary redress, he should have approached the High Court in revision.
8. The question for consideration is whether this revision should be dismissed as the petitioner did not approach the Sessions Judge to exercise his powers Under Section 436, Cr. P. C. The aforesaid principle has not till now been strictly enforced in this Court. It would work out injustice to the petitioner if this revision is dismissed by application of such a principle for the first time. The criminal revision was filed on 23-9-65 and is pending in this Court for about a year. In the circumstances, this revision should be excluded from the operation of the aforesaid rule.
9. In the result, the impugned order of the learned Magistrate is set aside and the criminal revision is allowed. The case is remitted to the S. D. M., Khurda for further inquiry in accordance with law and the observation made above.