JUDGMENT
Jagdish Chandra, J.
(1) The revision petitioner Ram Sarup filed a complaint against the respondents Devi Dayal Bhatia, Vinod Bhatia and Ajay Bhatia u/s 323/341/448/451/504 and 506 read with section 34 of the Indian Penal Code. After recording the pro-summoning evidence Shri V.K. Shali, Metropolitan Magistrate, New Delhi, ordered the summoning of the accused persons vide bids order dated 8th September. 1983 except that he found no prima facie case against them u/ss 451/504 Indian Penal Code and the complaint in respect of those two offences was dismissed.
(2) Feeling aggrieved with the summoning order passed by the learned Megistrate, the respondents filed two revision petitions-one respondent No. 1 and the other by respondents 2 and 3 and those were accepted vide order dated 21st Mach, 1985 passed by Mr. Mahesh Chandra, then Addl. Sessions Judge, New Delhi and the summoning order was set aside and the complaint was dismissed.
(3) The complainant Ram Sarup feeling aggrieved with the order of the Addl. Sessions Judge has now filed this revision petition in the High Court challenging the correctness and validity of the same.
(4) This revision was filed on 30th May, 1985 within limitation but there was an office objection whereunder the petitioner was called upon to file three more sets of the revision petition for service on the three respondents and with that objection the revision petition was returned to the petitioner with a direction to refile the same within a week after the removal of the aforesaid objection. The learned counsels for the petitioner filed one more set and undertook to file two more sets at the time of issuance of notices to the respondents. The petitioner thereafter refiled this revision petition after about 111″ months on 15th April, 1986. The learned counsel for the respondents has assailed the filing of this revision petition as barred by limitation asserting that when it was directed by the office on raising the objection aforesaid that the revision was to be filed within a week after 30th May, 1985 when it was originally filed, the refiling of the same by the petitioner after such a long delay of 11″ months took the revision petition beyond the statutory period of limitation and could not be entertained by the court. On the other hand, the learned counsel for the petitioner relied upon Municipal Corporation of Delhi v. Girdharilal Sapuru and others, wherein the revision was filed in time but returned as there was no requisite power of attorney of the Advocate filing the revision and by the time of objection was removed the revision stood barred by limitation and even the application for condensation of delay was not filed. The revision petition in that case was originally filed in the High Court on 29th November, 1977 and after removal of objections it was resubmitted on 1st February. 1978 and in the meantime the limitation expired on 1st February, 1978. The High Court dismissed the revision petition as barred by limitation and more so as no application for condensation of delay had been filed. The matter went up to the Supreme Court in appeal by Special Leave and the Supreme Court field as allows : “……WITHOUTgoing into the nicety of this too technical contention. we may notice that Section 397 of the Code of Criminal Procedure enables the High Court to exercise power of revision suo motu and when the attention of the High Court was drawn to a clear illegality the High Court could not have rejected the petition as time barred thereby perpetuating the illegality and miscarriage of justice. ………Section 397(1) in terms confers power of suo motu revision on the High Court and if the High Court exercises suo motu revision power the same cannot be denied on the ground that there is some limitation prescribed for the exercise of the power because none such is prescribed. If in such a situation the suo motu power is not exercised what a glaring illegality goes unnoticed can be demonstrably established by this case itself…”
(5) No authority to the contrary was cited by the learned counsel for the respondents and so following this authority the question of limitation cannot be allowed to come in so as to disable the court to quash the illegality allegedly suffered by the petitioner in this case at the bands of the order under revision.
(6) Regarding the scope and ambit of the revisionary powers of the High Court the learned counsel for the petitioner has relied upon Smt. Nogawwa v. Veeronna Shivalingoppa Konjalgi and others, wherein the scope of sections 401, 204 and 202 of the Code of Criminal Procedure, 1973 (in short Code) was discussed and settled. No doubt this authority has dealt with revisionary powers of the High Court, the same shall be equally applicable to the revisionary powers of the Addl. Sessions Judge who passed the impugned order, inasmuch as u/s 399 of the Code the powers of revision vesting in a Sessions Judge arc the same which are vested in the High Court under sub-section (1) of section 401 of the Code. So, this authority will also govern the powers of revision of the learned Addl. Sessions Judge who passed the impugned order. It would be desirable and even necessary to set out the relevant portion of this authority and the same is reproduced below:
“IT is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations arc totally foreign to the scope and ambit of an inquiry under Section 202 which culminate into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside :
(1)Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2)Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceedings against the accused ;
(3)Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(4)Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. In the instant case the order of the Magistrate issuing process against the accused persons is a very well reasoned one which took into consideration the allegations in the complaint as also the evidence adduced in support of it. On a consideration of the evidence the Magistrate was satisfied that a prima facie case against the accused persons was made out and he accordingly issued process against them. The High Court went into the whole history of the case, examined the merits of the evidence, the contradictions and what it called the improbabilities and after a detailed discussion not only of the materials produced before the Magistrate but also of the documents which had been filed by the defense and which should not have been looked into at the a stage when the matter was pending under Section 202, has held that the order of the Magistrate was illegal and was fit to be quashed. This was an entirely wrong approach.”
(7) It is in the light of the aforesaid observations and the criteria that the impugned order pasted by the learned Addl. Sessions Judge has to be seen. The perusal of the impugned order would go to show that the learned Addl. Sessions Judge was impressed by certain discrepancies occurring in the complaint and in the statement of the complainant as Public Witness 1 and also by the improbability of the presence of Vas Dev Public Witness 2 for the reason that he could not be expected to be present at the spot at the time of occurrence due to the fact that on that very day his daughter was due to be married. It is also pointed out in the impugned order that there is absolutely no mention of any beating to the petitioner-complainant by the respondents in the whole of the complaint in general and in particular in paras 6 and 7 thereof. The learned counsel for the petitioner has invited my attention to para 7 of the complaint wherein there is mention of a couple of fist blows having been given to the complainant on the face by the accused Ajay Bhatia. So, that observation in the impugned order is not factually correct. Further more, even though in para No. 6 of the complaint there is mention of trespass into the shop of the complaint on the part of the respondents whereas the complainant as Public Witness 1 has not mentioned the word “trespass”, he has started that all the three respondents came to his shop and started beating him. It is asserted by the learned counsel for the respondents that the phrase “coming to shop” cannot connote “trespass” into the shop. Any bow, the occurrence is there regarding the respondents coming to the shop of the complainant and beating him and the impugned order based on a couple of discrepancies here or there and the improbability of Vas Dev Public Witness 2’s presence at the spot on account of the marriage of his daughter due on that very day, is an instances of transgression of the revisionary powers of Sessions Judge. In the aforesaid Supreme Court authority also when the matter was still with the High Court, the High Court had examined the merits of the evidence as also the contradictions andthe improbabilities and had also discussed not only the material produced by the complainant before the Magistrate but also the documents which had been filed by the defense and it was held by the Supreme Court that that was an entirely wrong approach. The Magistrate has been given an undoubted discretion in the matter even though the same has to be exercised by him judicially. It was for the learned magistrate to have come to a prima facie finding on his own retarding the existence of a prima facie case against the accused persons on the basis of which he was well within his right to pass the order of the accused summoning against them and the sme ought not to have interfered with by the learned Addl. Sessions Judge in revision in view of the limited powers vested in him as pointed out by the aforesaid Supreme Court authority. The case in hand does not fall into any of the four categories carved out in the Supreme Court authority inasmuch as it cannot be said that from the complaint or the statement of the witnesses recorded in support thereof there is made out absolutely no case against the accused or the complaint does not disclose the essential ingredients of the offences which are alleged against them nor can it be said that the allegations made in the complaint are patently absurd and inherently improbable. It also cannot be said that the discretion exercised by the Magistrate in issuing process was capricious or arbitrary having been based either on no evidence or on wholly irrelevant or inadmissible material not does the complaint suffer from any fundamental legal defect.
(8) The learned counsel for the respondent wants the court to see nor for the first time a copy of the report alleged to have been made by the complainant with the police of police station Kalkaji, New Delhi, on the very day of occurrence. As already pointed out above, the Supreme Court in the above mentioned Supreme Court authority has pointed out the wrong approach on the part of the High Court regarding the High Court having looked into the documents filed bythe defense by pointing out specifically that the same should not have been looked into at that stage and the stage was that of the issuance of process by the Magistrate against the accused persons. In view of this observation of the Supreme Court, the document now sought to be shown to the court by the learned counsel for the respondents cannot be looked into.
(9) In view of the discussion, the revision is accepted and the impugned order dated 21st March, 1985 passed by the learned Addl. Sessions Judge is set aside and that of Shri V.K Shali, Metropolitan Magistrate, dated 8th September, 1983 restored. Parties are directed to appear before the learned trial Magistrate on 1st September, 1986.