The duty of the court to independently examine the evidence and come to a clear-cut conclusion before directing the trial court to issue process against the accused under specific sections of the Indian Penal Code.

Surinder Singh, J. (Oral):- Heard and gone through the record.

2. Precisely, the facts of the case are that the respondent had filed the complaint against the petitioner herein under Sections 418, 420, 465, 467, 468, 469, 471 and 120-B of the Indian Penal and led preliminary evidence. After considering the preliminary evidence, the learned trial court did not find reasonable and requisite grounds to summon the petitioner- accused for any of the offences aforesaid, as such complaint was dismissed. Against this, the complainant filed the revision petition No. 11 of 2007, before the Court of Sessions which came to be decided by the learned Additional Sessions Judge vide his order dated 28.7.2008.

3. After having heard the parties and going through the record, learned Additional Sessions Judge without giving his own findings as to which of the offences were made out against which of the accused persons devised a noble method by quashing and setting aside the impugned order and directed the Magistrate below vide para 4 of his order to issue the process against the respondent, as per law without mentioning which of the offences were prima facie made out against which of the accused, however, it was left open for the trial Magistrate to separate the unfounded allegations, if any, out of the Sections set out in the complaint and even separating the unfounded respondents impleaded, if any, to prevent the innocent from being charged as reflected in the memo of parties whereas the learned trial magistrate had already considered the complaint and the preliminary evidence led before him and passed a detailed order. This means the learned Additional Sessions Judge did not apply its own mind to the facts and circumstances of the case as to which of the offence(s) is/are made out against which of the accused persons.

4. It was the onerous duty laid upon the learned Additional Sessions Judge to come to his independent and clear cut conclusion on examining the legality propriety and correctness of the order impugned before him, instead of assigning this job to the learned Judicial magistrate who had already applied his mind and assigned his reasons for dismissal. As such order dated 28.7.2008, passed by the learned Additional Sessions Judge is wholly unsustainable in the eyes of law, therefore, quashed and set aside. The case is hereby remanded back to his Court, which shall be entered by him against old number and after hearing the parties and examining the record shall arrive at his own independent conclusion about the correctness of the order impugned and whether there are reasonable grounds to issue process against any of the accused on the strength of the preliminary evidence on record, and if so under what Sections.

5. Parties are hereby directed to appear personally or through their counsel before the learned Additional Sessions Judge on 29.4.2009. The record of the court below be returned forthwith so as to reach the court below well before the date fixed.