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2010 DIGILAW 476 (ALL)

BHOJ RAJ v. STATE OF U. P.

2010-02-05

VIRENDRA SINGH

body2010
JUDGMENT Hon’ble Virendra Singh, J.—Revisionist Bhoj Raj, preferred this revision against the judgment and order dated 28.7.2001 passed by learned Additional Sessions Judge, Court No. 4, Firozabad in Criminal Revision No. 215 of 1998 (Jaisi Ram v. Bhoj Raj and another) whereby the judgment and order dated 27.6.1998 passed by Civil Judge, (Junior Division) Magistrate, Sikohabad in complaint case No. 144 of 1996 (Jaisi Ram v. Bhojraj) thereby dismissing the complaint under Section 434 I.P.C. is set aside. 2. I have heard learned A.G.A. on behalf of State. No one appeared on behalf of revisionist. 3. I have gone through the grounds of revision stating that the learned Magistrate had found on record that there were material contradictions between the statements of complainant Jaisi Ram and witness Puttu and, therefore, the revision was liable to be dismissed but the revision as per the impugned order has been wrongly allowed by the learned Sessions Judge. There remained no reliable evidence available on record that the revisionist had broken the land mark of field and thrown away the mark (Mutthiya) alleged to have been fixed during the revenue inspection. As per order and direction of learned S.D.M., the proceedings of land mark was conducted and mark (Mutthiya) was fixed. Had there been any fact of breaking and throwing of the land mark by the revisionist, the complainant/respondent Jaisi Ram certainly might have complained against the revisionist before S.D.M. The land mark of the complainant and the revisionist are adjacent to each other and there is no evidence of any type was collected by any agency as to whether the aforesaid land mark was broken and thrown by the revisionist. The revisionist neither committed mischief by destroying or making useless of any land mark fixed by the authority nor there is any reliable evidence in this regard against the revisionist available on record. 4. The revisionist neither committed mischief by destroying or making useless of any land mark fixed by the authority nor there is any reliable evidence in this regard against the revisionist available on record. 4. Learned A.G.A. contended that the grounds of the revision as aforesaid are not tenable as the learned Sessions Judge by way of the impugned order has rightly held that the proceedings adopted by the Magistrate was not in accordance with the provisions and the procedure adopted by the Magistrate was faulty because the learned Magistrate after hearing the arguments on 5.8.1997 discharged the accused for the offence under Sections 504 and 506 I.P.C. and ordered for proceedings as per provisions under Section 246 Cr.P.C., meaning thereby the procedure was adopted by the Magistrate provided for warrant trial cases despite the fact that the offence under Section 434 I.P.C. falls in the category of summon trial case and thus the Magistrate had violated the provision of Section 259 Cr.P.C. 5. In the light of the contention of the learned A.G.A. and the grounds of this revision, I have gone through the entire facts and circumstances on record and I am of this view that this revision has no force which is liable to be dismissed because, there is no illegality in the impugned order. Section 259 Cr.P.C. provides the power of Court to convert summons case. Trial into warrant case trial stating that when in the course of the trial of a summons case relating to an offence punishable with imprisonment for term exceeding six months, it appear to the Magistrate that in the interest of justice, the offence should be tried in accordance with procedure for the trial of warrant cases, such Magistrate may proceed to rehear the case in the manner provided by the Code of Criminal Procedure for the trial of warrant cases and may recall any witness who may have been examined. 6. The law is very much clear in this regard that any summon case may be tried by the procedure provided for warrant trial cases but any warrant trial case cannot be tried by the procedure provided for summons trial cases. 6. The law is very much clear in this regard that any summon case may be tried by the procedure provided for warrant trial cases but any warrant trial case cannot be tried by the procedure provided for summons trial cases. The perusal of the procedure adopted by the learned Magistrate shows that the revisionist was summoned on 17.9.1996 as an accused for the offence under Sections 434, 504 and 506 I.P.C. On 5.8.1997 the accused was discharged for the offence under Sections 504 and 506 I.P.C. and the case was proceeded merely for the offence under Section 434 I.P.C. The impugned order reveals that no charge was framed in writing against the accused for the offence under Section 434 I.P.C. despite the fact that the case was being proceeded as per procedure provided for the trial of warrant cases. The order passed by the learned Magistrate reveals that the evidence was recorded as per provisions under Section 244 Cr.P.C. and thereafter the evidence as per provisions under Section 246 Cr.P.C. was also recorded but nowhere reveals that in this procedure prescribed for trial of warrant cases, the learned Magistrate had framed the charge against the accused for the offence under Section 434 I.P.C. which is necessary for the procedure prescribed for trial of warrant cases. 7. Section 244 Cr.P.C. provides that when in any warrant case instituted otherwise than on police report, the accused appears, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Section 245 Cr.P.C. provides that if upon taking all the evidence referred to in Section 244, the Magistrate considers for reasons to be recorded, that no case against the accused has been made out which, if un-rebutted, would warrant his conviction, the Magistrate shall discharge him. Section 245 Cr.P.C. provides that if upon taking all the evidence referred to in Section 244, the Magistrate considers for reasons to be recorded, that no case against the accused has been made out which, if un-rebutted, would warrant his conviction, the Magistrate shall discharge him. Section 246 Cr.P.C. provides that if, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused and if the accused refuses to plead the guilty for the charge, he shall require to state, at the commencement of the next hearing of the case, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. 8. Here in this case since the procedure for trial of warrant cases was adopted by the Magistrate, it was necessary that a charge as per provisions under Section 246 Cr.P.C. should have been framed for the offence under Section 434 Cr.P.C. against the accused/revisionist. The procedure provided as per provisions under Section 259 Cr.P.C. is made for power of Court to convert trial of summons cases into trial of warrant cases. There is no power to the Court to divert back on the procedure of trial of summon cases for the case in which the procedure for trial of warrant cases has already been adopted. Therefore, the learned Sessions Judge committed no error thereby setting aside the order passed by the Magistrate because the procedure adopted by the Magistrate is not warranted in the Criminal Procedure Code. In these circumstances, I do not find it expedient that this revision be dismissed and is hereby dismissed accordingly. ————