Crl.Rev.No.1009 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Rev.No.1009 of 2002 Date of Decision: 4.2.2009 Hardial Singh .....Petitioner Vs. Harbant Singh ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Narinder Lucky, Advocate for the petitioner. Mr. R.S. Chauhan, Advocate for the respondent. .... RAJIVE BHALLA, J (Oral) Prayer in this petition is for setting aside the order dated 27.3.2002, passed by the learned Additional Sessions Judge, Rup Nagar, accepting the revision filed by the respondent by setting the order dated 23.12.2000, passed by the Judicial Magistrate, Ist Class, Ropar and directing the trial Court to summon the petitioner under Section 409 of the Indian Penal Code. Counsel for the petitioner submits that as the petitioner was summoned under Section 406 of the Indian Penal Code, the revisional Court could not direct his summoning under Section 409 of the Indian Penal Code, while setting aside the order of discharge. It is further submitted that as the petitioner is alleged to have embezzled land revenue, while working as a Lambardar, but as a Lambardar is not a government employee, the petitioner cannot be charged for an offence under Section 409 of the Indian Penal Code. It is further submitted that the complaint is time barred. Counsel for the respondent, on the other hand, submits that the Crl.Rev.No.1009 of 2002 2 matter is pending adjudication before the trial Court. The arguments raised by counsel for the petitioner should be left to the jurisdiction of the Magistrate, who would consider these submissions and pass order in accordance with law. I have heard learned counsel for the parties and perused the impugned order. The complainant filed a private complaint alleging that the petitioner misappropriated land revenue compelling the complainant to pay the land revenue once again. The petitioner was summoned to stand trial. The application for dismissal of the complaint was allowed, but vide order dated 27.3.2002, the learned Additional Sessions Judge, Rup Nagar, set aside the order of discharge and remitted the matter to the trial Court. The complaint was, thereafter, dismissed for non prosecution. The complainant filed a fresh complaint and after recording preliminary evidence, the petitioner was summoned under Section 406 of the Indian Penal code. The petitioner filed an application for his discharge, alleging that the complaint was barred by limitation. The application was allowed and the complaint was dismissed. The complainant, thereafter, filed a revision. The learned Additional Sessions Judge, Rup Nagar, allowed the revision and set aside the order passed by the Magistrate and remitted the matter, but while doing so, held that as the petitioner was a Lambardar, he should have been summoned under Section 409 of the Indian Penal Code. A perusal of the impugned order leaves no manner of doubt that the learned Additional Sessions Judge, Rup Nagar, has exceeded his jurisdiction and, therefore, committed an error of law. While exercising revisional jurisdiction, the Additional Sessions Judge, had no power to direct the summoning of the Crl.Rev.No.1009 of 2002 3 petitioner under Section 409 of the Indian Penal Code, particularly as no such relief was prayed and the challenge pending before him was to an order directing the petitioner's discharge. A revisional Court, while setting aside an order of discharge, cannot direct the summoning of an accused for an offence different from the offence, for which the accused has been summoned by the Magistrate. The revisional Court should, therefore, have merely set aside the order of discharge and remitted the matter to the Magistrate to proceed from the stage preceding the order of discharge. The argument that the complaint is time barred would be considered by the trial Court at an appropriate stage. In view of what has been stated herein above, the revision petition is partly allowed. The order dated 27.3.2002, passed by the learned Additional Sessions Judge, Rup Nagar is upheld to the extent that it has set aside the order of discharge, passed by the Judicial Magistrate, Ist Class, Ropar, but is set aside insofar as it directs the summoning of the petitioner under Section 409 of the Indian Penal Code. As the petitioner is 75 years old, his personal appearance before the trial Court shall remain exempted, subject to his filing an affidavit/undertaking to appear before the trial Court, as and when so directed and also stating therein that he would have no objection if the evidence is recorded in his absence. Parties are directed to appear before the trial Court on 4.3.2009. This petition stands disposed of accordingly. 4.2.2009 (RAJIVE BHALLA) GS JUDGE