1. This is a revision by the accused against the order of the Second Class Magistrate, Mannargudi, in C.C. No. 1080 of 1953 converting the Calendar Case into a Preliminary Register Case under Section 347(1), Criminal Procedure Cod. The petitioner was charged for abetment of criminal breach of trust, an offence punishable under Section 408, read with Section 109, Indian Penal Code. It is in respect of the disposal of certain bags of paddy said to be worth about Rs. 6000. The police charge-sheeted the accused for the said offence.
2. While the Assistant Public Prosecutor was conducting the prosecution, P.W. 2, whose paddy is said to be the subject of this offence, filed a petition on 13th September, 1954, stating therein -
The offence is of a grave character and has been still more aggravated by the Ist accused's statement on the 27th instant in this Court that the paddy was his own and not the petitioner's (complainant's).
It is further stated that, in view of the fact that the value of the paddy is Rs. 6000 and that a heavy fine has to be imposed for the purpose of realising the amount and if the Court is not competent to inflict such punishment, it should be committed to the Sessions. Although this petition was filed on 30th September, 1954, the Magistrate framed a charge on 4th October, 1954 for an offence under Section 408, read with Section 109. Subsequently, presumably at the instance of the complainant himself, on the Assistant Public Prosecutor conceding the point, he passed an order on the 8th October directing the conversion of the case into a Preliminary Register Case.
3. I must point out that the witness P.W. 2 has no locus standi in filing a petition of this nature, when the prosecution is in the hands of an Assistant Public Prosecutor. This is a case in which the police have filed the charge-sheet and the prosecution is entirely in the hands of the Assistant Public Prosecutor. The complainant is only a witness. He has no locus standi, whatever interest he may have in the case, to file a petition of this nature and ask the Court to convert it into any other case. It is not for the witness, though he may be a de facto complainant, to state what punishment the Court must give to the accused and whether such a punishment would be adequate in the circumstances of this case. Nor is it within his province to suggest to the Court that it should punish the accused in such a manner as to allow compensation being given to him. The lower Court ought not to have entertained this petition at all at the instance of this complainant. It ought to have dismissed the petition in limine. If the Sub-Magistrate has committed this case of his own accord, I would not have interfered with this order. Now the Court appears to have been influenced by the statements contained in the petition, which P.W. 2 filed before the Court and, as the result of that, this order has been passed. As I have already stated, such a petition ought not to have been allowed to be filed at all and it should have been dismissed in limine. If the Court thinks that the punishment it could give to the accused in the circumstances of the case may not be sufficient, certainly there is the First Class Magistrate, or the Sub-Divisional Magistrate to whom the records can well be forwarded under Section 349(I), Criminal Procedure. Code.
4. In the circumstances, and for the reasons given already, I set aside the order of the Sub-Magistrate converting this case into a Sessions Case and direct him to dispose of the case on the original charge framed by him. If he still feels that a higher punishment should be inflicted, he can forward the records to the Sub-Divisional Magistrate under Section 349(1) Criminal Procedure Code.