JUDGMENT
Adami, J.
1. This application is directed against an order of the Sessions Judge of Muzaffarpur directing further inquiry into the complaint of Radha Kishun against Jangal Singh. Radha Kishun is a banker and Jangal is a licensee for ferries. It appears that there is litigation between the two with regard to a ferry partnership and with regard to various funds. Radha Kishun complained that, for the purpose of adjusting accounts between the two, Jangal Singh came to his Bank with his clerk Lakhi Lal on the 11th November 1923, and for the purposes, of adjusting the accounts Radha Kishun read out the items of account and Lakhi Lal wrote them down on a chitha. While this was being done Jangal Singh took the chitha from Lakhi Lal and said that he wanted to look at in better light in the verandah and having got the chitha in to his hands went out of the door on to the roadway and handed the chitha to a sowar, who thereupon galloped away with it. Radha Kishun seeing what had happened tried to stop Jangal Singh and detained him but Jangal Singh jumped into his tumtum, and after his peons had pushed away Radha Kishun, drove off.
2. A complaint was made before the Magistrate of an offence under Section 395, Indian Penal Code which is dacoity. The Sub-Divisional Magistrate who recorded the complaint sent the case to the Police for investigation with the result that after some length of time the Police reported that the case was not a true one.
3. Radha Kishun petitioned the Sub-Divisional Magistrate to the effect that the Police were against him, and had in the first place refused to record an information which he lodged directly after the occurrence merely recording a sanha, which did not amount to an information of a cognizable offence, and then conducted the investigation with a bias against him. The Sub-Divisional Magistrate told him that he might produce evidence. He thereupon produced himself and one witness, a Pleader called Chaturbhuj Sahai. The Magistrate, after considering the Police report and the evidence given by the complainant and his witness, dismissed the complaint finding that no offence had been made out.
4. The learned Sessions Judge considered that the reasons given by the Magistrate for dismissing the complaint were not sufficient and that the complainant had not been given sufficient opportunity of proving his case before the Magistrate.
5. Before this Court it is argued that the Sessions Judge was wrong in upsetting the order of the Magistrate. The learned Magistrate give full reasons for distrusting the truth of the complainant’s case. He pointed out that in the first place the information given to the Police did not disclose an offence. The entry in the diary shows that Radha Kishun told the Police Officer that Jangal Singh had obtained from him the chitha and, that day, had refused to give it back. In that entry no mention is made of the handing over of the chitha to any sowar, nor is it said that Jangal Singh had forcibly taken the chitha away. The Magistrate did not think it likely that the Head Constable could make up a story so quickly considering that the statement was made by Radha Kishun at the Police Station, directly after the occurrence.
6. Soon after the complaint was made in this case Radha Kishun instituted a civil suit against Jangal Singh and in the plaint repeated the allegations as to the taking of the chitha which he had made in the complaint.
7. The Magistrate considered that the question whether Jangal Singh had withheld the chitha would be decided in the civil case, and that it was not right to come to a finding on the point in a criminal case, which would prejudge the issue of limitation in the civil case.
8. Now I have read through the Police report carefully and it certainly shows good reasons for distrusting the complainant’s story. The Police show that the witnesses contradicted each other as to facts or relied merely on hearsay. The chief witness brought before the Magistrate by Radha Kishun was the Vakil, Chaturbhuj Sahai, and he says that he saw Jangal Singh to go to his tumtum followed by Radha Kishun but that he did not see the handling of any chitha to a sowar, nor did he hear the galloping of the sowar to which some of the other witnesses alluded before the Police. His evidence would fully agree with what is shown by the Police diary to have been the first statement made by Radha Kishun, namely, that Jangal had obtained the chitha and refused to give it back. According to other witnesses examined by the Police the sowar was close to the tumtum, so if Babu Chaturbhuj Sahai saw the tumtum he must also have seen the sowar. I myself do not think that on the spur of the moment the Head Constable could have decided to record a note of the statement made by Radha Kishun as to convert a criminal charge into a statement that a civil wrong had been perpetrated. It has further to be noted that the complainant was told that he might bring evidence and only produce one witness. It was not then incumbent upon the Magistrate to cause other witnesses to be examined before him. The Magistrate was, in my mind, quite justified in dismissing the complaint and I do not think that there was sufficient ground for the Sessions Judge to order a further inquiry.
9. It is not to be taken. That this Court comes to any finding as to the occurrence, Radha Kishun will have full opportunities in the civil case to prove what actually occurred. It may well be that Jangal Singh did obtain the chitha and refused to give it back to Radha Kishun and went off with it; but this would not amount to a criminal offence, if the chitha was handed over to Jangal Singh voluntarily. It is of course unnecessary to point out that the statement of law made by the Investigating Police Officer to the effect that because it was from Lakhi Lal that Jangal Singh received the chitha he could not be guilty of an offence against Radha Kishun is not correct.
10. An Appellate Court should not lightly set aside an order of dismissal but should only do so when it is clear that there has been a miscarriage of justice.
11. In the present case the Magistrate gave good reasons for not believing the complainant’s story, and the complainant only produced one witness before him, whose evidence failed to corroborate that part of the story of the alleged occurrence which would convert the present petitioner’s action into a criminal offence. Even if the complainant’s story were true it could not support a charge of dacoity, and that is the charge made in the complaint. I do not think there was justification for directing further inquiry.
12. The application will be granted and the order of the learned Sessions Judge for further inquiry will be set aside.