Ram Asrey Singh and Others vs State of U.P. and Another

Kundan Singh, J.—This revision has been directed against the order dated 6.11.1986 passed by the Special Judge, Varanasi allowing Criminal Revision No. 470 of 1986 and setting aside the order dated 22.10.1986 passed by the End Addl. Munsif-Magistrate. Varanasi in Criminal Case No. 382 of 1985 u/s 382, I.P.C., P.S. Rohania, district Varanasi.

It is alleged that on 26.11.1983 at about 6 a.m. the applicants and one more unknown person armed with gun, country made pistol, spear and Gandasa reached the plot in dispute and forcibly took away the paddy crop of the complainant Shiv Shanker Pandey. The matter was reported to P.S. Rohania. After investigation by the police, charge-sheet was submitted against all the four accused-applicants. Before the learned Magistrate an affidavit was filed by one of the accused on 4.12.1984 to show that there was a long criminal litigation between the parties. Out of three were concerned only to the cutting of paddy crop from plot No. 264 and a regular suit was pending in connection with the ownership in the civil court. Some proceedings had already taken place between the parties before the Revenue Court. On consideration of the documents on record the learned Magistrate came to the conclusion that it was doubtful that any prima facie charge was made out against the accused persons and he passed an order discharging the accused persons by the order dated 22.10.1986.

The State preferred Criminal Revision No. 472 of 1986 before the Sessions Judge against the order of discharge of the accused persons. The learned Sessions Judge, after considering the material on record, allowed the revision and set aside the order of the learned Magistrate. The case was sent back to the court concerned for decision afresh in accordance with law in the light of the observations made in the body of the judgment dated 6.11.1986 passed by the learned Sessions Judge.

The learned Counsel for the applicants challenged the order of the Special Judge/Addl. Sessions Judge on the ground that the accused had already been discharged u/s 239, Code of Criminal Procedure only after considering the police report and the documents sent with it u/s 173, Code of Criminal Procedure and the Magistrate came to the conclusion after examining those documents and giving opportunity of hearing to the prosecution as well as the accused and the charge levelled against the accused was groundless. Once an order of discharge is passed u/s 239, Code of Criminal Procedure with the reasons therefor, even then the order may be erroneous but the same will amount to acquittal as no charge was prima facie made out against the accused on the basis of the police report, as such that order would not be revisable. At the most, that could be challenged u/s 378, Code of Criminal Procedure. I do not find any substance in the submission of the learned Counsel for the applicants inasmuch as in case the order of the learned Magistrate is influenced by some other extranuating materials excluding the material on record, the Magistrate ignores or excludes to consider part of materials submitted u/s 173, Code of Criminal Procedure the order can be quashed by the appropriate court. The learned Sessions Judge was perfectly justified in entertaining the revision against the defective or erroneous order as no appeal against the order of discharge lies under any statutory provisions of law.

The second contention of the learned Counsel for the applicants is that the learned Sessions Judge entered into reappraisal of the evidence and substituted his own findings for which he was not at all competent. He was also influenced by extraneous materials which was not supplied u/s 173, Code of Criminal Procedure. At the most, he could have remanded the case back to the court below to pass fresh order in accordance with law but the order of revisional court is itself legal and sustainable in law. It is true that the learned Sessions Judge has also considered the affidavit filed on behalf of the complainant, which could not have been considered as the affidavit and other documentary evidence do not form part of the record u/s 173, Code of Criminal Procedure. I have examined relevant paper. It is certain that the learned Magistrate has not examined the materials submitted u/s 173, Code of Criminal Procedure.

I have gone through both the judgments of the courts below and I find that the learned Magistrate was not justified in looking into the affidavit which has been referred to by him and overlooking the material u/s 173, Code of Criminal Procedure. He was required only to confine and examine the materials submitted u/s 173, Code of Criminal Procedure.

The learned Counsel next contended that if the accused satisfies the court u/s 239, Code of Criminal Procedure that he has a bona fide claim of ownership under illustration (p) to Section 378, I.PC., a charge of theft would be groundless and he is liable to be discharged at the stage of framing of charge u/s 239, Code of Criminal Procedure. I do not find any substance in the contention of the learned Counsel for the applicants inasmuch as bona fide claim is a question of fact which can be determined only after the evidence is adduced by the parties examined during the trial.

Lastly, the learned Counsel for the appelicants submitted that it is a matter of 1983 and at that time litigation was also pending before the civil and revenue courts in respect of the plot in dispute and it is possible that some findings might have been arrived at regarding ownership and possession of the property by the civil and revenue courts.

Considering the facts and circumstances, I direct the Magistrate concerned to consider only the police challan and materials supplied u/s 173, Code of Criminal Procedure. If any finding has been recorded or the matter regarding the ownership and possession has been decided by the competent court and those documents are produced by either of the parties, the Magistrate will also consider those documents and will provide adequate opportunity of hearing to both the parties for passing fresh appropriate orders under Sections 239 and 240, Code of Criminal Procedure.

With these observations the revision is dismissed.