The power of the Court of Session to direct summoning of accused or framing of charge under Sections 398 and 399 of the Code of Criminal Procedure.

S.S.SANDHAWALIA, J.

1. Whether Sections 398 and 399 of the Code of Criminal Procedure. 1973, envisage within their ambit a direction to the trial Magistrate to summon the persons accused before him or if already so summoned to frame a charge against them and put them on trial is the significant question which has necessitated this reference to the Division Bench.

2. The facts relevant to the controversy are not in serious dispute. The Indian Overseas Bank, respondent No. 1, and its Branch Manager Shri J.R. Tutlari had jointly preferred a complaint under Ss.406, 420/34 and 120-B of the Indian Penal Code alleging that the four petitioners, namely, Bal Kishan Jain; Smt. Prem Lata Jain; Prem Nath and Hem Chand Jain had dishonestly misappropriated the goods hypothecated with the respondent-Bank under an agreement and had thereby intentionally cheated them. It was further alleged that the offence had been committed in concert and in conspiracy with Sat Pal, Kewal Krishan, Mohinder Kumar, Salaish Gupta and Rakesh Gupta, who were also arrayed as accused persons in the complaint.

3. The learned Chief Judicial Magistrate, Rohtak, before whom the matter came up in the first instance after recording the preliminary evidence produced on behalf of the complainants dismissed the complaint under Section 203 of the Code of Criminal Procedure on the finding that the case was one of a purely civil nature and the complaint appeared to be an attempt to press in aid the machinery of criminal law for pressurising the petitioners to pay the amount.

4. Aggrieved by the above order the respondent-Bank and its Branch Manager preferred a revision petition in the Court of Session at Rohtak. The learned Sessions Judge by his order dated the 7th of Nov., 1978, accepted that revision petition and sent the case back to the trial Court for affording an opportunity to the complainants to produce additional evidence in support of their complaint and further directed that the Magistrate should proceed to dispose of the case after discussing the earlier statements of three witnesses and in particular that of P.W. 3 S.R. Yadav. In compliance with the aforesaid direction the matter came up before Shri P.C. Goel, Judicial Magistrate, Ist Class, Rohtak. However, after allowing the complainants to produce additional documents D. 5 to D. 13 and discussing the earlier evidence he again came to the conclusion that the matter was a civil dispute between the parties in respect of the amount in question and consequently there were no grounds to proceed against them and dismissed the complaint under Section 203, Criminal Procedure Code.

5. The respondent-Overseas Bank and another then preferred another revision petition against the aforesaid dismissal which was ultimately heard by the Additional Sessions Judge, Rohtak, on a consideration of the matter he came to the conclusion that the criminal intent on the part of the accused persons from the very outset stood well established The operative part of the order which is now under challenge is in these terms :-

"Without dilating further on the points raised before me I accept the revision petition and direct that the accused persons should be put to trial."

6. This revision petition first came up before Sidhu J., sitting singly and the contention was seriously pressed before him that Section 398 of the Code did lot warrant a direction to put the accused on trial and at best only a further enquiry into the matter could be ordered. Noticing a conflict of precedent on the point the case was referred for an authoritative decision by a larger Bench and that is how the matter is before us.

7. At the very outset I may mention that it appears that before the learned single Judge the issue seems to have been canvassed narrowly on the scope of Section 398 of the Code alone. However, before us the argument was inevitably extended to the joint scope of Sections 398 and 399 because the latter Section now prescribes the large