The revising court should not lightly set aside an order unless it has entailed mis-carriage of justice or where two views are possible. The revising court can only order a further inquiry and should not put any impediment in the judicial discretion of the lower court.

Jarat Kumar Jain, J.

This application under Section 482 of Code of Criminal Procedure (for short "the Code") has been filed against order dated 08/01/2015, passed by IInd Additional Sessions Judge, Shajapur in Criminal Revision NO. 133/2014, whereby directed the Magistrate to take the cognisance against the petitioner for the offence mentioned in the complaint.

2. Brief facts of this case are that the respondent/complainant has filed a complaint against the petitioner for the offence under Sections 390, 392, 394, 327 & 166 of IPC and under Section 3(2)(v) and (vii) of SC and ST (Prevention of Atrocities Act). After considering the statements of the complainant and the witnesses and the result of investigation the Magistrate found that there is no sufficient ground for proceeding, therefore, vide order dated 13/05/2014 dismissed the complaint. Against this order the respondent has filed the revision under Section 397/401 of the code, learned IInd ASJ, Shajapur by the impugned order allowed the revision and directed the Magistrate that there is prima facie ground for taking cognisance against the petitioner for the offence mentioned in the complaint. Being aggrieved with this order this petition has been filed.

3. Learned counsel for the petitioner assailed the impugned order on two grounds that the Revisional Court should not have set-aside the order lightly, unless order passed by the Magistrate entail mis-carriage of justice or perverse or un-reasonable. For this purpose, he placed reliance on the judgment of this Court in the case of Rajaram Gupta v. Dharamchand, 1983 CRI. L.J. 612. Second ground is that, while exercising the power under Section 398 of the "Code", the Revisional Court at the most can remand the case back for further inquiry but Revisional Court has no jurisdiction to direct the Magistrate for taking cognisance of particular offence. For this purpose he placed reliance on the judgment of this Court in the case of J.D. Singh v. State of M.P., (1990) MPLJ 39 & Rewaram v. State of M.P., (2004) (4) MPLJ 351.

4. On the other hand learned counsel for the respondent submits that the revisional Court after taking into consideration the material placed before the Magistrate directed that, at the time of taking cognisance, the Magistrate has to see whether prima facie case exists or not. At this stage, it is not to be considered what are the defences available to the accused. Learned ASJ while setting-aside the order passed by the Magistrate has only directed the Magistrate that there is prima facie evidence for taking the cognisance. Thus, there is no illegality or perversity in the impugned order. Therefore, there is no merit in the petition, the petition is liable to be dismissed.

5. After hearing learned counsel for the parties, I have perused the record.

6. This Court in the case of Rajaram Gupta (supra) held as under:

"While deciding a revision petition, some of the well settled principles have always to be kept in mind. For example, an order not to be lightly set-aside unless it has entailed mis-carriage of justice or where two views are possible, merely the fact that the revising Court takes other view, then the one taken by the Lower Court. The bare possibility of an additional offence or some alleged offence being made out would not in itself justify further inquiry. A further inquiry ought not to be ordered also where it would prove futile. The order discharging an accused should not be interfered with, unless it is perverse or on the face of record in-correct or foolish perfectory or glaringly un-reasonable or has been made without recording reasons for discharging the accused."

In Rajaram Gupta's case (supra) this Court further held that :

"The only order that could be made by the revising Court under this Section is for a 'further inquiry'. No direction, therefore, in the nature of putting any impediment in the judicial discretion to be exercised by the lower Court has to be made. (See: Banchhanidhi Maharas