SUPREME COURT OF INDIA

Before:- G.B. Pattanaik and U.C. Banerjee, JJ.

Criminal Appeals Nos. 937-38 of 1999. (Arising out of SLPs (Crl.) Nos. 150-51 of 1999) D/d. 13.9.1999.

Gurnam Singh - Appellants

Versus

State of Punjab & another - Respondents

Criminal Procedure Code, 1973, Sections 344 and 340 - Indian Penal Code, Sections 191, 193 and 193 - Order issued by Magistrate while acquitting an accused in a criminal case directing hat notices be sent to the ASI and the Head Constable to show cause as to why proceedings be not initiated against them under Sections 191, 192 and 193 Indian Penal Code - No notices issued to the concerned persons - Appellant bringing the matter in notice of the Magistrate - Held, order of the Magistrate directing issuance of the notices was one under Section 344 and not under Section 340 - Sessions Judge and High Court committed gross error in quashing the proceedings on the erroneous assumption that the application filed by the appellant intimating about non-issuance of notices was an application for initiation of criminal proceedings pursuant to which Magistrate had started criminal action - Magistrate directed to proceed in accordance with law.

[Paras 3 and 4]

ORDER

G.B. Pattanaik, J. - Leave granted.

2. The short question that arises for consideration in this appeal is whether while disposing of the criminal case by order dated 26-4-1988, the direction of the Magistrate in para 14 can be said to be an order within the meaning of Section 344 of the Criminal Procedure Code or under Section 340 of the said Code. The aforesaid order is quoted hereinbelow in extenso:

"In view of what has been discussed above, the accused is acquitted of the charge framed against him, and notices be sent to Harnarinder Singh, ASI and Harbans Singh, Head Constable to show cause as to why proceedings be not initiated against them under Sections 191, 192 and 193 Indian Penal Code."

3. It transpires that notwithstanding the aforesaid order, notices have not been issued to the persons concerned. An application was filed on 20-10-1988 bringing it to the notice of the Magistrate that inadvertently the notices have not been issued so far. The learned Sessions Judge in revision and also the High Court construed the order of the Magistrate to be one under Section 340 obviously on the impression that the application filed by the present appellant dated 20-10-1988 is an application for initiation of the criminal proceedings pursuant to which the Magistrate started criminal action. This conclusion on the face of it is erroneous inasmuch as having gone through the order of the Magistrate dated 26-4-1988 passed in Criminal Case No. 25/3 of 1987 acquitting the accused persons, it is essentially an order under Section 344 and the subsequent application made by Gurnam Singh is merely an intimation to the Magistrate stating the fact that the notices have not been issued. If the original order of the Magistrate is one under Section 344 then the Sessions Judge and the High Court have committed gross error in quashing the proceedings on the erroneous assumption that the criminal proceedings were initiated only after application filed by them on 20-10-1988.

4. In the aforesaid premises, we set aside the impugned order of the High Court and that of the Sessions Judge and direct the Magistrate to proceed in accordance with law. These appeals are disposed of.

Appeals disposed of.