# SMT. NAGAWWA v. VEERANNA SHIVALINGAPPA KONJALGI & ORS

- **Citation:** [1976] Supp. 1 S.C.R. 123
- **Court:** Supreme Court of India
- **Decided:** 1976-04-23
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-nagawwa-v-veeranna-shivalingappa-konjalgi-ors-7083
- **Pages:** 8

## Headnote

•
123
SMT. NAGAWWA
A.
V.
VEERANNA SHIVALINGAPPA KONJALGI & ORS.
April 23, 1976
' ,..
fA. C. GUPTA AND S. MURTAZA fAZAL ALI, JJ.]
COde of Crin1inal Procedure, ss. 202, 204-Enquiry under s. 202-Scope of
... .
-Accused if had locus sta'ndi.
'
The appellant filed a complaint before the Magistrate alleging that the
police did not deliberately charge-sheet respondents 1 and 2 despite the fact
that they abetted in the murder of her son because they were influential persons.
After the inquiry the Magistrate issued a process to respondents 1 and 2 under
c
s. 204(l){b) of the Code of Oiminal Procedure, 1973. Tho revision petition
of respondents I and 2 filed under s. 482 Cr.P.C. was allowed by the High
Court. Jn appeal to this Court it. was contended for the appellan? that the
High Court was ih error in examining the order of the Magistrate on merits after
taking j,nto consideration the doculll';::nts filed by the respondents, which did not
form part af the complaint or evidence recorded in support thereof before tho
Magistrate.
Allowing the appeal,
))
·HELD : The order of the High Court suffers from a serious legal infirmity
and. the High Court has exceeded its jurisdictiOn. in interfering in revision b-y
qua;hing the order of the Magistrate.
[129 H]
( 1) In the following case! an order of the Magistrate can be quashed or
liet aside :
(a) Where the allegations made in the complaint or the statements of the
witne"S.scs recorded in supp0rt of the same taken at their face value make out
absolutely no case against the accused or the COD"Jplaint docs not disclose the
essential ingredients of an offence which is alleged against the accused;
(b) Where the allegation! made in the compiaint are patentiy absurd and
ioh.erently improbable so that no prudent person ca"n ever reach a conclusion
that ijhere is sufficient ground for proceeding against the accused.
(1:) Where the discr~tion exercised by the Magistrate in issuing process is
capricious and arbitrary having been based either on no evidence or on materi~Is which are wholly irrelevant or inadmissible; and
{d) 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.
(128 C-E]
(2)(a) At the stage of issuing the process the Magistrate is n1ainly oon·
ccrned with allegations made in the complaint or the evidence led and he is
onty to be. prima fade Satisfied whether there are sufficient grounds for proc:eedio.g against the accused. It is not the province of thti Magistrate to enter into a
detailed discussion on the merits or demerits of the case. The scope of the
in.qujry under s. 202 Cr.P.C. is extremely limited-lin1ited to the ascertainment
of the truth. or falsehood of the allegations made in the complaint:
(i) on
the materials placed by the complainant before the court (ii) for the limited
Purpose of finding out whether a prima facie case for issue of process had
been made out and (iii) for deciding the question purely from the point of
view .of the complainant without at all adverting to any defence that the
accused may have. In prooeedings under s. 202 the accused has got absolutely
llO focus standi and iSi not entitled to be heard on the question whether the
process should be issued against him or not.
(126 E; 127 E+l
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124
SUP!\EME COURT REPORTS
(1976] SUPPLEMENTARY
A
Chandra Deo Sing/1 v. Prokas/i Chandra Bose, [1964] I S.C.R. 6l9 and
Vadilal Panchal
v.
Dattatraya Dulaii Ghadigaonker and Another,
[19"61] 1
S.C.R. I, followed.
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(_b) In coming to a decision as to \Vhether a process should be issued the
~:1ag1strate can take into consideration inherent improbabilities appearing on
the face of the complaint or in evidence led by the complainant in support
of the allegations.
Once the Magistrate has exercised judicially the discretion
given to him it is not for the High Court or even this Court to substitute
its own discretion for that of the Magistrate or to examine the case on

## Text

•
123
SMT. NAGAWWA
A.
V.
VEERANNA SHIVALINGAPPA KONJALGI & ORS.
April 23, 1976
' ,..
fA. C. GUPTA AND S. MURTAZA fAZAL ALI, JJ.]
COde of Crin1inal Procedure, ss. 202, 204-Enquiry under s. 202-Scope of
... .
-Accused if had locus sta'ndi.
'
The appellant filed a complaint before the Magistrate alleging that the
police did not deliberately charge-sheet respondents 1 and 2 despite the fact
that they abetted in the murder of her son because they were influential persons.
After the inquiry the Magistrate issued a process to respondents 1 and 2 under
c
s. 204(l){b) of the Code of Oiminal Procedure, 1973. Tho revision petition
of respondents I and 2 filed under s. 482 Cr.P.C. was allowed by the High
Court. Jn appeal to this Court it. was contended for the appellan? that the
High Court was ih error in examining the order of the Magistrate on merits after
taking j,nto consideration the doculll';::nts filed by the respondents, which did not
form part af the complaint or evidence recorded in support thereof before tho
Magistrate.
Allowing the appeal,
))
·HELD : The order of the High Court suffers from a serious legal infirmity
and. the High Court has exceeded its jurisdictiOn. in interfering in revision b-y
qua;hing the order of the Magistrate.
[129 H]
( 1) In the following case! an order of the Magistrate can be quashed or
liet aside :
(a) Where the allegations made in the complaint or the statements of the
witne"S.scs recorded in supp0rt of the same taken at their face value make out
absolutely no case against the accused or the COD"Jplaint docs not disclose the
essential ingredients of an offence which is alleged against the accused;
(b) Where the allegation! made in the compiaint are patentiy absurd and
ioh.erently improbable so that no prudent person ca"n ever reach a conclusion
that ijhere is sufficient ground for proceeding against the accused.
(1:) Where the discr~tion exercised by the Magistrate in issuing process is
capricious and arbitrary having been based either on no evidence or on materi~Is which are wholly irrelevant or inadmissible; and
{d) 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.
(128 C-E]
(2)(a) At the stage of issuing the process the Magistrate is n1ainly oon·
ccrned with allegations made in the complaint or the evidence led and he is
onty to be. prima fade Satisfied whether there are sufficient grounds for proc:eedio.g against the accused. It is not the province of thti Magistrate to enter into a
detailed discussion on the merits or demerits of the case. The scope of the
in.qujry under s. 202 Cr.P.C. is extremely limited-lin1ited to the ascertainment
of the truth. or falsehood of the allegations made in the complaint:
(i) on
the materials placed by the complainant before the court (ii) for the limited
Purpose of finding out whether a prima facie case for issue of process had
been made out and (iii) for deciding the question purely from the point of
view .of the complainant without at all adverting to any defence that the
accused may have. In prooeedings under s. 202 the accused has got absolutely
llO focus standi and iSi not entitled to be heard on the question whether the
process should be issued against him or not.
(126 E; 127 E+l
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124
SUP!\EME COURT REPORTS
(1976] SUPPLEMENTARY
A
Chandra Deo Sing/1 v. Prokas/i Chandra Bose, [1964] I S.C.R. 6l9 and
Vadilal Panchal
v.
Dattatraya Dulaii Ghadigaonker and Another,
[19"61] 1
S.C.R. I, followed.
B
c
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(_b) In coming to a decision as to \Vhether a process should be issued the
~:1ag1strate can take into consideration inherent improbabilities appearing on
the face of the complaint or in evidence led by the complainant in support
of the allegations.
Once the Magistrate has exercised judicially the discretion
given to him it is not for the High Court or even this 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 complain!, if
proved. would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of inquiry under s.. 202
of the Code of Criminal Procedure, which culminates in an order under s. 204
of the Code.
[1_27 G.H; 128 A-BJ
(3) In the instant case the High Court should not have quashed the
proceedings.
The order of the Magistrate was a reasoned one \\'hieb took
into consideration the alle2ations in the complaint as also the evidence adduced
in support of it.
It was not a case where the Magistrate had passed- an
order in a mechanical manner or just by way of routine.
Th~ High Court
could n6t go into this matter in its revisional jurisdiction which is a very
limited on<.
[128 F-G]
CRIMJNAL APPELLATE JURISDICTION : Criminal Appeal No. 99 of
1976.
'
Appeal by Special Leave from the Judgment and Order dated
16-12-75 of the Karnataka High Court in Criminal Petition No. 50 of
1975.
N. B. Datar and R. B. Datar for the Appellant.
E
M. C. Bhandare, (Mrs.) S. Bhandare, M. S. Narsimhan, K. JC
F
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Sharma, and A. K. Mathur for Respondents 1 and 2.
Narayan Nettar for Respondent No. 3.
The Judgment of the Court was delivered by
FAZAL Au, J.
This appeal by special leave is directed against the ·
judgment of the Karnataka High Court by which it set aside the crder
of the Additional Judicial Magist,rate, First Class, Gokak issuing process against respondents 1 & 2 in exercise of his discretion under s. ~04
of the Code of Criminal Procedure.
The facts of the case lie within
a very narrow compajs and although the High Court has taken great
pains to write a laboured judgment the point involved. is short and
simple and does not merit a detailed discus_sio_n.
The police ol Gokak
Police Station submitted a charge-sheet against Nagappa Giddannavar
-and seven others under ss. 302, 114, 148, 147 and other sections on
the allegations that on July 19, 1973 the accused persons had wayh\id
and murdered one Nagappa son of the appellant in this Court. The
appellant, who had filed the report before the police does not appear
to have been satisfied with the investigation by the police which according to her was tainted and had suppressed some important materials,
file_d a complaint before the Magistrate at Gokak on October 4, 1-973
alleging that _respondents 1 & 2 had in fact abetted the offence ?f
murder committed by the other accused but as they were inll\Jentrnl
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125
persons their names were deliberately left out in the report as also in
the dying declaration,
On receiving the complaint
on October 4,
1973 the Magistrate decided to hold an inquiry into the complaint
himself and in pursuance of his decision he recorded some evidence
on October 8, 1973,
Thereafter the case was posted for October 10,
1973 for arguments and further evidence, if any,
On October 10,
1973 the Magistrate observed that six witnesses had been examined
and the evidence recorded so far was sufficient for the Court to determine the question as to whether or not process should be issued to
respondents 1 & 2.
He then adjourned the case for argument for
October 12, 1973. ·On that day arguments were heard but before any
order could be passed the Magistrate who had recorded the evidence
was transferred and therefore the case had to be adjourned.
The new
Magistrate took up the matter on November 26, 1973 and after hearing the complainant he adjourned the case to December 3, 1973 and
on this day he directed that further inquiry may be made by Superintendent of Police, Belgaum and he accordingly referred the matter for
inquiry and report to the Superintendent of Police,' Belgaum asking
him to submit his report within six weeks, It seems to us that in view
of the change of the Magistrate the successor Magistrate was not able
to grasp the implications of the proceedings which had been taken by
his predecessor who had in fact first decided to hold an inquiry himself and after recording the evidence had decided to pass an order
under s. 204 of the Code of Criminal Procedure.
Before however be
could pass any order he was .succeeded by the present Magistrate. The
appellant filed an application in revision to the High Court on December 11, 1973 against the order of the Magistrate dated December 3,
1973 referring the matter to the Superintendent of Police for inquiry
and report.
Whiie the application was pending before the High
Court, respondents 1 & 2 filed a petition before the High Court praying for an early hearing of the revision and for vacation of the stay
order.
Along with this petition the respondents filed a number of
documents including the copies of the petitions sent by the appellant
to the Chief Minister and the Speaker.
We might indicate here that
there was absolutely no occasion for the respondents to have filed the
documents before the High Court in a miscellaneous petition nor <lid
they obtain any permission of the Court for filing those documents,
The High Court, after hearing the revision
application filed by the
appellant, allowed the same mainly on the ground that as the Magistrate had ultimately decided to hold an inquiry into the trnth or falsehood of the complaint himself he had no jurisdiction to stop that inquiry
and then make a reference to the police afresh.
The High
Col!ft
accordingly quashed the order of the Magistrate and directed him to
decide the case in accordance with the law after recording further
evidence, if any. It appears that the High Court did not give any
directions to the Magistrate for considering the documents which had
been filed by the respondents before it but by a subsequent order
merely forwarded the documents to the Magistrate.
The papers were
sent back to the Magistrate on January 7, 197 5 and by his order dated
January 27, 1975 the Magistrate was informed tha.t the appellant did
not want to adduce any further evidence.
The matter was accordingly posted for argument on February 7, 197 5 and after hearing the
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arguments and . considering the evidence recorded by the Magistrate
he by his order dated February 11, 1975 directed process to be issned
against respondents 1 & 2 under s. 204( 1) (b) of the Code of Criminal
Procedure.
Respondents 1 & 2 then preferred a revision against this
order to the High Court under s. 482 of the Code of Criminal Procedure praying that the order of the Magistrate may be quasbed.
This
revision was allowed by the High Court by the impugned order against
which special leave was
granted by this Court at the instance of the
appellant
In support of the appeal Mr. H. B. Datar submitted that the
Magistrate had given cogent reasons for holding that there were sufficient grounds for proceeding against respondents 1 & 2 and the High
Court was in error in interfering with the order of the Magistrate by
examining the merits of the case after taking into consideration the
documents filed by the respondents which could not be looked into by
the Magistrate as they did not form part of the complaint or the
evidence recorded in support thereof.
In our opinion the contention
raised by the learned counsel for the appellant is well-founded and
must prevail.
Mr. M. C. Bhandare sought to repe·l the argument of
the appellant on the ground that the order of
the Magistrate was perverse and as the case was full of patent absurdities
and was politically motivated the prosecution of respondents 1 & 2
would amount to unnecessary harassment resulting in abuse of the process of the Court.
In the view we take in the instant case it is not
necessary for us to enter into the merits of the case at this stage. It is
well settled by a long catena of decisions of this Court that at the
stage of issning process the Magistrate is mainly concerned with the
allegations made in the complaint or the evidence led in support of the
same and he is only to be prima fade satisfied whether there are sufficient grounds for proceeding against the accused.
It is not the province of the Magistrate to enter into a detailed discussion of the merits
or demerits of the case nor can the High Court go into this matter in
its revisional jurisdiction which is a very limited one.
In Chandra Deo Singh v. Prakash Chandra Bose(') this Court had
after fully considering the matter observed as follows :
"The courts have also pointed out in these cases that
what the Magistrate has to see is whether there is evidence
in support of the allegations of the complainant and not
whether the evidence is sufficient to warrant a conviction.
The learned Judges in some of these cases have been at pains
• to observe that an enquiry under s. 202 is not to be likened
to a trial which can only take place after process is issued,
and that there can be only one trial.
No doubt, as stated
in sub-s. (1) of s. 202 itself, the object of the enquiry is to
ascertain the truth or falsehood of the complaint, but the
Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before
him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant
--------
(!) (1964) t S. C.R. 639 , 648.
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NAGAWWA V, v. s. KONJALGI (Fazal Ali, J,)
and the statements made before him by persons examined
at the instance of the complainant."
Indicating the scope, ambit of s. 202 of the Code of Criminal Procedure this Court in Vadilal Panchal v. Dattatrya Dulaji Ghadigaonker
and Another(') observed as follows :
"Section 202 says that the Magistrate may, if he thinks
lit, for reasons to be recorded in writing, postpone the issue
of process for compelling the attendance of the person complained against and direct an inquiry for the pu~pose ?f ascertaining the truth or falsehood of the complamt;
m other
words, the scope of an inquiry under the section is limited to
finding out the truth or falsehood of the complaint in order
to determine the question of the issue of process. The inquiry
is for the purpose of ascertaining the truth or falsehood of the
complaint; that is, for ascertaining whether there is evidence
i11 support of the complaint so as to justify the issue of process and commen.cement of proceedings against the person
concerned. The section does not say that a regular trial for
adjudging the guilt or otherwise of the person complained
against should take _place at that stage; for the person complained against can. be legally called upon to
answer the
accusation made against him only when a process has issued
and he is put on trial."
lt would thus be clear from the two decisicms of this Court that
the scope of the inquiry under s. 202 of the Code of Criminal Procednre is extremely limited-limited only to the ascertainment of the
truth or falsehood, of the allegations made in the complaint-(!) on
the materials placed by the complaint before the Court; (ii) for the
limited purpose of finding out whether a prima facie case for issue of
process has been made out; and (iii) for
deciding
the
question
purely
from
the
point
of view of the
complainant
without
at all ndverting
to
any
defence
that
the
accused
may have.
In fact
it
is
well settled that
in
proceedings
under s. 202
the accused has got absolutely no locus standi and is
not entitled to be heard on the question whether the process should be issued
against him or not.
Mr. Bhandare laid great stress on the words "the truth or
falsehood of the complaint" and contended that in determining
whether the compl~i~t is false the Court can go into the question of
!he broad prnbabiht!es of the ~ase or. intrinsic infirmities appearing
rn the evidence. It is true that m .conung t» a decision as to whether
a pro"ess 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
t~~re a~pears. tC'. be .a very thin line of demarcation between a probability 01 _convi~t10n of the ac~used and establishment of a prima facie
cas~ ag~rnst him.
The Magistr~te has been given an undoubted discreh?n m the matter and the discretion has to be judicia ll v exercised
'by him. Once the Magistrate has exercised his discretion it is not for
(l) (1961] l S. C.R. 1, 9.
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the High Cour_t, or even this Co\lrt, to substitute its own discretion
for that of the Magistrate or to examine the case on merits with a
view to find out whetJ.ier or not the allegations in the ~omplaint, if
proved, would ultimately end in conviction of the accused.
These
considerations, in our opinion, are totally foreign to the scope and
ambit of an inquiry under s. 202 of the Code of Criminal Pro~cdure
which culmir.ates into an order urider s. 204 of the Code. Thus it
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may be safely held that in the following cases an order oi the Magistrate issuing process against the accused can be quashed or set aside :
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(1)
(2)
Where the allegations made in tllll complaint or the
statements 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 ingrediems of an offence which -
is alleged against the accused;
where the
allegations made in the
complaint are
patently absurd and inherently improbabl~ so that no
prudent person can ever reach a conclusion that
there is sufficient ground for proceeding against the
accused; .
(3) where the discretion exercised by the Magistrate in
issuing process is capricious and
arbi:rary 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 auth0rity and the like.
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guidelines to indicate contingencies where the High Court can quash
proceedings.
Applying these principles to the facts of the present case it seems
to us that the present case is not one in which th~ !-ligh Court should
have quashed the proceedings.
To begin with, the order of the Magistrate dated February 11, 1975 issuing process against respondents l
and 2 is a very well reasoned one which takes into consideration the
allegations in the complaint as also th3 evidenc·~ adduced in support of
it.
Tile Magistrate clearly applied his mind anrl has analysecl the evidence into three categories-(i) those witnesses who have deposed
as eye witnesses regarding the actual occurrence and the part attributed
to respondents 1 and 2. The Magistrate then refers to other witnesses
who cr,rroborated the evidence of the complainant; and thirdly the
Magistrate relied on the evidence of witnesses who were admittedly
signat<Jries to the dying declaration and had clearly stated on oath that
the n.nnes of respondents 1 and 2 were mentioned in their presence
by the deceased but were not recorded by the Police Patel in the dying
decJ.aration and in spite of the protest by the wituesses they were made
to sign the dying declaration as attesting witnesses under threat and
duress. On a consideration of this evidew:c the Magistrate was satis-
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NAGAWWA V. v. s. KONJALGI (Fazal Ali, J.)
129
fied that a prima facie case against respondents 1 and 2 was made out
and he accordingly issued process against them. It was not a case
where the Magistrate had passed an order issuing process in a mechanical manner or just by way of routine. The High Court <.ppears to
have gone into the whole h.istory of the c~se, examined. the merits .o!
the evidence, the contradictions and what 1t called the 1mprobab1h11es
and aft<r a detailed discussion not only or the materials produced
before t~ Magistrate but also of the doeument' which had been filed
by the defence and which should uot have been looked into :;it the
stage when the matter was pending under s. 202, has held that the
order of the Magistrate was illegal and was fit to be quashed.
In the
first place the High Court ought not to have considered the document'
filed by respondents 1 and 2 in the_ previous revision with<'Ut obtaining the permission of the Court and particularly when the liigh Court
itself gave no directions whatsoever to the Magistrate to consider those
documents.
In fact the Magistrate considering the question a! to
whether
process
should be
issued
against the
accused or
not
cannot
go
into
the
materials
placed by
the
accused
and
therefore
the
High
Court could
not
have
given
any
iuch
directions
while
disposing
of
the
previous
rev!Slon.
The
impugned order of the High Court prnceeds on the basis
that it
was incumbent on the Magistrate to have considered the documents
and their effect on the truth or falsehood of the allegations made by
the complainant. This was an entirely wrong approach.
As we arc
clearly of the opinion that the Magistrate . was fully justified in completely excluding the documents from consideration, we refrain from
making any observation regarding the effect of those documents.
In
fact the documents filed by the respondents were mere copies and they
were, therefore, not admissible. At any rate, at the stage of s. 202
or s. 204 ot the Code of Criminal Procedure as the accused had fl:)
locus standi the Magistrate had absolutely no jurisdiction to go into
·any materials or evidence which may be produced by the accused who
could be present only to watch the proceedings and not to participate
in 1 hem.
Indeed if the documents or the evidence produced by the
,.ccuse<.i is ~!lowed to be taken by the .Magistrnte then an
inquiry
under s. 202 would have to be converted into a full-dress trial defeating the very object for which this section has been engrafted.
I'he
Hig:1 Court in quashing the order .c.f the Magistrate completely failerl
to consider the limited s_cope of an inq1Jiry under s. 202. liaving ~one
throu5h the order of the Magistrate we do not find any error of bw
committed by him.
The Magistrate !las exercised his discretion nnd
has given cogent reasons for his conclusion.
Whether the reasons
were good or bad, sufficient or insufficient, is not a matter which .could
ha~e been examined by the J:Iigh Court in revision.
We ure eon~
tramed to o?serve that. the. Hi~h Court. went out of its way to wrilt
a laboured Judgment h1ghbghting certam aspects cf the case of the
accn~cd as appearing from the documents filed by them which they
were. not entitled to file and which were not entitled in law 1e lte
cmlS!dtred.
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F~r these reasons, therefore, we are satisfied that the order of
the High Court suffers from a serious legal infirmity and the High Court
11-833 SCl/76
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has exceeded its jurisdiction in interfering in revision by quashing the
order of the Magistrate.
We, therefore, allow the appeal, set aside the
order of the High Court dated December 16, 1975 and restore
the order of the Magistrate issuing process against respondents 1 and 2.
At lhe time of granting the special leave, we had directed
the
Sessions Judge who was trying the 0riginal case resulting from the
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F.I.R. lodged before the police to stay proceedings to the extent that
the judgment was not to be pronounced untJl this appeal was disposed
of.
We understand that the Sessions case is now concluded before
the learned Sessions Judge and arguments haw also hee.n heart!.
In
view of the order of the Magistrate issuing process against respont!ents l
and 2 which has been confirmed by us, t!Je respondents will have to
face a supplementary trial and it is 'not conducive in the interests of
C
justice to allow the other trial to be stayed any further. The Sessions
Judge is therefore directed to dispose of the Sessions Case and the stay
granted by this Court earlier is vacated.
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