M.M. Punchhi, J.
1. This is a petition for revision against an order of the Additional Sessions Judge, Ambala, whereby in exercise of his powers under Section 398, Criminal Procedure Code, he directed further inquiry to be made in a criminal complaint in which the Judicial Magistrate 1st Class had recorded an order of discharge of the accused-petitioners.
2. The respondent Vir Bhan filed a complaint against the two, accused-petitioners and one Baldev Singh who has since died, alleging that on 12-2-1976, he purchased a buffalo for Rs. 1250/-from one Gurbachan Singh in village Sondha, The buffalo appeared to be newly calved. The bargain was struck in the presence of one Kapur Singh and the complainant allegedly sent the former to his village to ask one Shabrati to meet him at Ambala City on 13-2-1976 at about 9.30 A.M. as he anticipated that he would be able to take the buffalo by that time to Ambala City. The complainant further alleged that on 13-2-1976, he placed the calf on a rickshaw and that Sukhdev Singh accused-petitioner, who was the brother of Gurbachan Singh vendor, accompanied the complainant up to Ambala City whereat Shabrati, as arranged, met him. Therefrom it is alleged that the complainant and Shabrati left for their village Shah-zadpur with the buffalo and its calf and when they reached village Handesara, they took off the calf from the rickshaw as they had to cross the Tangri rivulet. After crossing the said rivulet, the complainant alleged that he reached near a grove of trees where he saw the three accused with three other persons variously armed with lathis and gandasis whereat Gurbaksh Singh and Baldev Singh accused caught hold of the complainant and Sukhdev Singh accused along with three others forcibly snatched the buffalo from Shabrati and till the buffalo had been taken away by those persons, the complainant and Shabrati was kept confined and threatened of murder if they tried to follow them. On Naurata Ram of Shahzadpur having arrived at the place, the accused ran away. The complainant further claimed that in the evening of 13-2-1976 he went to Police Station, Naraingarh and gave a report in writing but no action was taken and then on 25-3-1976, he sent a copy of the report to Superintendent of Police, Ambala, under registered cover but that bore no fruit. It is then that he filed the complaint. After recording preliminary evidence, the learned Magistrate summoned the accused for an offence under Section 392, Indian Penal Code. Thereafter he recorded some evidence and passed an order of discharge of the accused on 9-11-1977. The complainant filed a revision petition before the Additional Sessions Judge, Ambala, who allowed it on 20-5-1978 directing further inquiry to be made in the matter under Section 398, Criminal Procedure Code. He directed the parties to appear before the learned Chief Judicial Magistrate, Ambala, for further proceedings. He gave occasion to the petitioners to move this Court in revision and obtain an order for staying further proceedings before the Chief Judicial Magistrate, Ambala.
3. It has been canvassed at the bar that the learned Additional Sessions Judge, Ambala, overstepped his jurisdiction exercisable under Section 398, Criminal Procedure Code, which is in the following language:
398. Power to order inquiry-On examining any record under Section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make; and the Chief Judicial 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 (4) of Section 204, or info the case of any person accused of any offence who has been discharged:
Provided that no Court shall make any direction under this section for inquiry into the case of any person who; has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.
4. It is patent from the language employed in the section that the power of the Sessions Judge thereunder is to examine any record under Section 397, Criminal Procedure Code, or otherwise and that such power is exercisable to proceedings pending or concluded at the precharge stage. While records called for to exercise powers of revision under Section 397, Criminal Procedure Code, are for the purpose of satisfying the Court as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings, the power, under Section 398 is not co-extensive with Section 397 but extends far wider as the record can 'otherwise' be examined by the Sessions Judge without re-course to Section 397, Criminal Procedure Code. Thus it is difficult to agree with the learned Counsel for the petitioner that the order of discharge passed by the inquiring Magistrate would tantamount to an acquittal and the Additional Sessions Judge should not have lightly upset the view of the learned Magistrate, It is equally difficult to uphold the contention of the learned Counsel that the power under Section 398, Criminal Procedure Code, should be read as co-extensive with Section 397, Criminal Procedure Code, to the four purposes for which the normal power of revision is exercisable. Indeed, the power exercisable is only to maintain and further the dignity of justice and if the reasons recorded by the Magistrate for the discharge are not sound or are otherwise unreasonable, interference by the Sessions Judge would perfectly be legal.
5. The learned Counsel for the petitioners cited a single Bench decision of the Delhi High Court reported in Jagjit Singh v. Sujan Singh 1970 Delhi LT 69, to contend that the power of revision conferred under Section 436. Criminal Procedure Code (old), is to be exrcised sparingly and with caution and circumspection to correct some patent error which might have occasioned miscarriage of justice. The learned single Judge of that Court took that view as well settled. However, with utmost respect, as at present advised, I do not propose to sub-scribe to that view as that would be doing violence to the language of the section and would tantamount to reading in the section something which is not there. Had the power under Section 398, Criminal Procedure Code, been exactly that of Section 397, Criminal Procedure Code, there was no need for the legislature to have enacted Section 398 and in particular to have employed therein the expression 'or otherwise'.
6. Now the reasoning advanced by the learned Additional Sessions Judge in upsetting the view of the learned Magistrate was, that at the pre-charge stage, the Court was only required to see whether the evidence of the complainant disclosed a prima facie case for the accused to be put on charge. The learned Judge approached the subject with the reasoning that the inquiring Magistrate had not to minutely scrutinise or to otherwise to go at that stage into the improbabilities of the case but had, for purposes of the charge, to go on broad features of the insinuation. True, that the complainant had put in a receipt to evidence the sale of a buffalo to him by the brother of the accused and had not examined the said vendor, but that was a detail which could otherwise not alter the plea of the complainant that the buffalo was taken away from his possession. Equally the complainant had not to examine his entire evidence before the charge and could produce all such evidence in support of his case. The learned Magistrate is not required to keep on recording the evidence and can at any previous stage of the case form the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX (B), Criminal Procedure Code. The emphasis is not towards establishment of the guilt of the accused but only towards establishment of a ground for presuming that the accused has committed an offence. Such presumptions capable of being raised under law cannot be sub-stituted as proof. The learned Magistrate did not doubt the statement of the complainant as supported by the evidence of the two prosecution witnesses but discharged the accused being of the view that Shabrati P. W. could be under the influence of the complainant being a Chowkidar of his village and Naurata Ram P. W. was a chance witness. that was hardly the stage to settle that question when other evidence was available with the complainant. The learned Additional Sessions Judge on the basis of the material on the record came to the conclusion that the complainant alone could well be believed by a Court uncorroborated by any other evidence, and that he had no motive to falsely implicate the accused. At least on that reasoning, according to the learned Additional Sessions Judge, there was presumption capable of being raised under Section 246(1), Criminal Procedure Code, that the accused had committed an offence and if the evidence was yet deficient, the learned Magistrate should have gone on further enquiring into the matter. The view taken by the learned Additional Sessions Judge, Ambala, does not seem to be improper or legally erroneous to warrant interference by this Court at the revisional stage. The effort of the learned Counsel for the petitioners to get reappraised evidence of Shabrati and Naurata Ram so as to justify the view taken by the learned Magistrate is to be resisted as this Court would refrain from assuming the functions of a Court of fact.
7. Resultantly, this petition fails and is hereby dismissed. The parties through their counsel are directed to appear before the Chief Judicial Magistrate. Ambala on May 30, 1980.