JUDGMENT Hon’ble N.A. Moonis, J.—Heard Shri M. P. Singh Gaur, the learned counsel for the revisionists, the learned AGA appearing on behalf of State and perused the record. 2. The instant revision has been preferred against the judgment and order dated 22.10.2005, whereby the applicants have been summoned by Special Judge (D.A.A.), Budaun in complaint case No. 278 of 2004, Ganga Sahay v. Lukhmi Chand, under Sections 395 and 397 IPC, P.S. Faizganj, Behta, District Budaun. 3. The prosecution case in a nutshell is that the opposite party No. 2 filed a complaint, that on 14.9.2004 at about 10 :00 am the applicants have looted twenty litres mentha oil and ornaments worth six thousand rupees, they had also taken away seven thousand rupees from his son Janak Singh. They had also set on fire the house of the complainant and demolished the boundary wall of his house, thereafter while threatening they took their heels after firing in the air. The said incident was witnessed by Satyaveer, Bhurey, Pooran, Nandlal, Satyaram and many other villagers. The complainant’s mother went to lodge the first information report of the said incident, but it was not registered. Thereafter when her mother returned back to home she found her husband died on account of terror and threat extended to his father. On account of this incident peace and tranquility of the entire village was disturbed. The last rites of his father was also performed in the presence of police but no first information report was lodged, hence the complaint was filed on 27.9.2004. 4. The learned counsel for the revisionists has contended that the Court below passed the order in a very casual manner, as the complainant did not produce all the witnesses according to the list of witnesses. The son of the complainant from whose possession seven thousand rupees was alleged to have been snatched away by the revisionists has not at all been produced as a witness, even the complainant’s mother was also not examined who is said to be the material witness of the alleged incident. The revisionists and the complainant both belonged to the same village. The incident is said to have occurred in a broad day light. Even looted articles have not been recovered from them, though the police was very much present on the spot. The revisionists and the complainant both belonged to the same village. The incident is said to have occurred in a broad day light. Even looted articles have not been recovered from them, though the police was very much present on the spot. The revisionists are said to have been armed with weapon but no one had received any injury. The revisionist No. 7 is an Assistant Teacher and on the date of alleged occurrence he was present in his school, Shri Krishan Junior High School, Bichaita, District Moradabad. The statements of the witnesses recorded under Section 202 Cr.P.C. do not support the prosecution case. The present criminal prosecution has been launched just to cause harassment of the revisionists, who are innocent and have nothing to do with the said incident. The revisionists have been falsely implicated by the complainant due to village rivalry. No offence has been made out against them. Therefore the summoning order passed against the revisionists is unjust, illegal, liable to be quashed. 5. Per contra, the learned AGA has vehemently argued that the instant revision filed against the summoning order is not maintainable which is barred by Section 397(2) Cr.P.C. as the same is an interlocutory order. The Court below has committed no manifest error in passing the impugned summoning order. 6. The learned counsel for the revisionists has refuted the above contention of the learned AGA. In support of his contention he has relied upon the case of Rajesh Sewani and others v. State of U.P. and another, 2003(2) JIC 178 (All), where the summoning order was set aside and the Court below was directed to call upon the complainant to produce all the witnesses and examine them on oath and thereafter to pass appropriate orders in accordance with law. 7. 7. The learned counsel has further relied upon the decision of this Court in the case of Sirpal and others v. State of U.P. and others, 2010 (1) JIC 294 and has contended that, this Court has observed that the offence of dacoity committed by family members of one family in his own village in the house of another person is highly improbable and held that the learned lower Court has not taken into account the circumstances as to, lest it would be an instrument in the hands of the complainant as vendetta to harass the revisionists/ accused persons needlessly, and thus the impugned summoning order was quashed. 8. The learned counsel next relied upon the decision of this Court in the case of Shiv Prasad Shakyawar v. State of U.P. and another, 2009(8) ADJ 66 , wherein it was held that the summoning order is not an interlocutory order and thus the revision against the same would not be barred by Section 397(2) Cr.P.C. On the basis of the aforesaid authorities the learned counsel for the revisionists has contended that the impugned order passed against the revisionists suffers from manifest illegality and as such is liable to be quashed. 9. I have considered the submissions of the learned counsels for the parties and gone through the record. 10. So far as the maintainability of the instant revision is concerned it has been settled by the Apex Court in the cases of Adalat Prasad v. Rooplal Jindal, 2004 (50) ACC 924 and Subramaniam Sethi Raman v. State of Maharashtra and another, 2005 (51) ACC 684, that only remedy available to the accused persons against the summoning order is to move the High Court in the proceedings under Section 482 Cr.P.C. The Magistrate is not empowered to recall the order issuing process against the accused and only remedy available to the accused against the summoning order is to invoke the jurisdiction of the High Court in the proceedings under Section 482 Cr.P.C. In the instant case, the complainant had produced five witnesses in support of his case who has fully supported the prosecution case. Merely because some of the witnesses mentioned by the complainant in the complaint have not been examined would not effect the fabric of the prosecution case. Merely because some of the witnesses mentioned by the complainant in the complaint have not been examined would not effect the fabric of the prosecution case. The alibi of the revisionists cannot be considered at the very initial stage, as it will be determine during trial after the evidence is lead before the trial Court. The revisionists who belong to the same village cannot be said to have been falsely implicated by the complainant as there is no reason for their false implication. The authenticity of the affidavit, if any given by the witnesses also cannot be looked into at this stage. It is a settled legal principle that at the time of issuing process the learned Magistrate has only to see the contents of the complaint and prima facie offence if any, made out against the accused revisionists and as such at the very initial stage it cannot be said that no offence is made out against the accused revisionists. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court. There is no illegality or perversity in the impugned order passed by the Court below in summoning the revisionists to face the trial under Sections 395, 397 IPC. Therefore, the present revision is bereft of any merit and it is accordingly dismissed. 11. Interim order, if any exists, is hereby vacated. 12. However, the applicants are directed if they have not appeared and surrendered before the Court concerned to appear and surrender before the Court concerned and apply for bail which shall be considered by the Court concerned expeditiously in accordance with law. 13. Office is directed to communicate this order to the Court below to proceed with the case in accordance with law uninfluenced by any observation on merits herein above. —————