This is a revision application against the judgment of the Additional Sessions Judge, Tharparkar dated 30th November 1966.
2. The dispute in this application relates to a building owned by the Municipal Committee Shahdadpur, in Shahdadpur. The Municipal Committee has rented out the said building as shops and there is a dispute between the applicant and the first opponent about one of the shops.
Originally the shop was leased to the first opponent, but according to the applicant, about two years before the date of the occurrence, it had been sublet to him and he was running a hotel in the shop. The Municipal Committee wanted to demolish the building and the applicant tried to establish has independent title over the shop and moved the Municipal Committee in this respect.
Therefore, according to the applicant the first opponent was annoyed and on 22nd June 1965 at about 9-30 p. m., the first opponent and the other opponents went armed to the said shop and, damaged it by trying to demolish it and also robbed the utensils of the applicant and a cash box of the applicant which was lying in the shop. The applicant was not in the shop when the occurrence took place, but he heard of the occurrence and rushed to the shop and saw the opponents demolishing the shop and taking away his goods. Therefore, he went to the police station to file the complaint, but because of the influence of the first opponent, the F. I. R. Was not recorded till the following morning. The applicant then waited for two days but as no action was taken, he filed a complaint in the Court of Sub-Divisional Magistrate, Shahdadpur against the opponents under sections 394, 452, 148 and 426, P. P. C. 1n the events that happened, the case was heard by the Civil Judge and section 30 Magistrate, who ordered a preliminary enquiry and at the same time ordered notice to the opponents. In the course of the said preliminary enquiry the learned Magistrate examined the applicant and his witnesses, but he allowed counsel for the accused to defend the accused and at the request of the said counsel the learned Magistrate examined the record of the investigations of the case by the police. Apparently, in that investigation, the opponent had produced copies of documents, one of which purported to be a Partnership Deed between the applicant and the first opponent, in respect of the said shop. On the basis of these documents, by his order dated 6th May 1966 the learned Magistrate dismissed the complaint with the following observatiotits :- "The matter is of Civil nature as is evidence from documentary evidence. As against it the oral evidence has not much weight. In the circumstances the complaint is dismissed under section 203, Cr. P. C."
3. Aggrieved by this order, the applicant tiled a revision in Sessions Court. This application was heard and dismissed by the learned Additional Sessions Judge, Tharparkai anti Sangliaby his order dated 30th November 1966 and the applicant has come in revision against the said order.
4. The applicant has appeared in person and has submitted that the learned Magistrate erred in allowing the Advocate of the accused to appear in the preliminary enquiry against him. I may observe here that by his order dated 12th September 1965 the learned Magistrate had directed a preliminary enquiry and notice to the accused at the same time. The learned Additional Advocate- General has pointed out that in Saeed Wahid Bux Shah v. State (PLD 1964 Kar. 316) this Court has held that "it was not intended, that in a preliminary enquiry under section 202, Cr. P. C. The accused A should be summoned by notice and allowed to have the prosecu--tion witnesses cross- examined and produce his own side of the case orally or in writing". In the instant case, the learned Magistrate has dismissed the complaint on the basis of documents produced at the instance of the accused, therefore, in view of the judgment cited, it is clear that the Magistrate acted illegally in dismissing the complaint on the basis of documents produced at the instance of the accused.
5. I have observed that the documents on the basis of which the complaint of the applicant was dismissed were documents examined by the police in the course of their own investigation of the complaint lodged by the applicant. Now section 203, Cr. P. C. States that a Magistrate may dismiss a complaint on line oasis of the enquiries held under section 202, Cr. P. C. Under section 202, on taking cognizance of an offence, a Magistrate may inquire into the case himself, or refer it to another Magistrate for an enquiry, or refer it to the police for an enquiry. But in dismissing a complaint, lie can only rely on the results of the enquiry held under section 202, Cr. P. C. In the instant case, the l8 documents on which the Courts below have relied were not produced before the police in any inquiry ordered by the Magistrate under section 202, Cr. P. C. But were produced in the course of investigations made by police on their own. In relying on these documents the Courts below have acted in flagrant disregard of the provision of section 203, Cr. P. C. Therefore, on this ground also the orders dismissing the complaint of the applicant are illegal.
6. I have observed that the learned Magistrate has dismissed the complaint on the ground that the dispute between the parties was of a civil nature. The learned Additional Sessions Judge has taken the same view and has observed "Indeed the matter is of a civil nature. There is a partnership deed which disclose that this shop and the furniture would be the property of the opponent No. 1.
Applicant, was only a working partner in the firm. It also appears from the Municipal record that the Municipal authorities also recognised opponent No. 1 as tenant as they gave him the notice to vacate the premises for purposes of reconstruction. They also accepted Rs. 1,000 as advance towards the rent of new shop . . . . . . All these documents suggests that opponent was a recognised tenant of this shop." On examining the documents on which the learned Additional Sessions Judge and the Magistrate relied in support of their finding that the dispute between the parties was of a civil nature, I was shocked to find that all these documents are copies of documents. There is no explanation for the non-production of the original documents, therefore, the Courts below have acted in flagrant disregard of the provision of sections 64 and 65 of the Evidence Act, 1872 in accepting these copies of documents as evidence. The finding of the Courts below dismissing the complaint on the ground that the dispute between the parties was of a Civil nature is therefore not based on any evidence at all and has to be set aside.
7. Accordingly I set aside the orders of the Courts below and allow the revision application. The case is remanded, so that the applicant's complaint may be heard by a competent Magistrate, who shall hold a preliminary enquiry and pass fresh orders on the complaint on the basis of evidence admissible in law.