Judgement

SIKRI, J. : This appeal by special leave is directed against the judgment of the High Court of Punjab dismissing Criminal Miscellaneous Petition No. 8 of 1964. This petition arose out of the following facts. Bhagwant Rai and Chhota Ram were tried under Section 325, I .P. C., read with Section 34, I. P. C., in the Court of Shri Harish Chander Gaur, Magistrate 1st Class, Patiala. Ajaib Singh, Sub Inspector, one of the appellants before us, had investigated the case. The Magistrate, by his order dated April 5, 1957, acquitted both the accused and, inter alia, observed that Bhagwant Rai had been falsely implicated in the case as he was not even present on the day of the occurrence at Patiala. On the application of Bhagwant Rai, Shri Joginder Singh Karamgerhia , Magistrate 1st Class, Patiala, who succeeded Shri Harish Chander Gaur, flied a complaint under Sections 193, l95, 211 and 120B, I. P. C., on October 31, 1958, against six persons including the appellants, Ajaib Singh and Malkiat Singh. Shri O. P. Gaur Magistrate First Class, by his order dated June 1, 1959, discharged the accused, holding that the complaint was not competent as it was barred by sub-section (6) of Section 479A, Cr. P. C., because the complaint had not been filed by or directed to be filed by Shri Harish Chander Gaur, who had disposed of the case ending in the acquittal of Bhagwant Rail. In the revision filed against this order the Additional Sessions Judge upheld this view. The High Court (Capoor, J.), on revision, found it unnecessary to consider the scope of Section 479A, Cr. P. C., vis-a-vis S. 476, Cr. P. C., because two of the offences mentioned in the complaint, namely, Section 211 and Section 120B, I. P. C., did not fall within the purview of S. 479A. Capoor, J., further held that Section 42 of the Police Act, 1861, had no application to a case in which a complaint was made by the Court under Section 476, Cr. P. C. Capoor, J., also held that as the order of Shri Joginder Singh, Magistrate, directing the making of the complaint against the respondents was not appealed from and had become final, the competency of the Court to make the complaint under Section 211, I. P. C., against Jaswant Singh, one of the accused could not be considered at that stage. The High Court accordingly set aside the order of the learned Additional Sessions Judge and directed that the respondents be proceeded against according to law.

2. On the case going back fresh objections were filed before the Magistrate trying the case but these were overruled. Revision was filed before the Additional Sessions Judge who accepted the prayer of Kirpal Singh and recommended to the High Court that the criminal proceedings pending against him in the Court of Magistrate First CIRSS, Patiala, might be quashed. He, however, declined to interfere with the proceedings pending against the appellants mainly on the ground that the objections now taken by them before the Trial Magistrate had been heard and finally disposed of by Capoor, J., in his order dated April 4, 1961.

3. In the meantime, the appellants, put in Criminal Miscellaneous Petition No. 8 of 1964, in criminal revision, in the High Court, praying that along with the recommendation made by the learned Additional Sessions Judge, Patiala, for quashing the criminal proceedings against Kirpal Singh, the grounds urged by them might also he taken into consideration. Capoor, J., accepted the recommendation made by the learned Additional Sessions Judge, Patiala and quashed the criminal proceedings against Kirpal Singh. He, however, directed that Criminal Miscellaneous Petition No. 8 of l964 should be placed before another Bench for disposal. The matter was then placed before Sharma, J., who held that all the points urged in Criminal Miscellaneous Petition had been taken into consideration and repelled by Capoor, J., in his order dated April 4, 1961. Sharma, J., observed :

"The learned counsel, however, omitted to take note of the fact that