N.M. Kasliwal, J. - (1.)Heard arguments in the main revision at the request of the learned counsel for the petitioner and the learned Public Prosecutor.
(2.)A trial under Sections 380 & 401 Penal Code was proceeding against one Surjeet Singh in the Court of Judicial Magistrate No. 2, Jaipur City, Jaipur. During the trial Chhotu Singh PW 3 was examined on Sept. 12, 1980 and on the basis of his statement the learned Magistrate took cognizance of an offence under Sec. 380/109 Penal Code against the petitioner Sribux Singh. On an application moved by the accused Surjeet Singh the case was withdrawn by the learned Chief Judicial Magistrate to his Court. The accused Surjeet Singh had made a confession of the guilt and the learned Chief Judicial Magistrate, apart from the confession, placed reliance on the statements of the prosecution witnesses and by his order, dated Oct. 23, 1980 convicted Surjeet Singh for an offence under Sec. 380 Penal Code and sentenced him to six years rigorous imprisonment and a fine of Rs. 50.00 and in default of payment of fine to further undergo rigorous imprisonment for 15 days. The learned Chief Judicial Magistrate on the same day passed an order discharging the present petitioner for offence under Sec. 380/109 IPC. Aggrieved against the order of discharge, the State filed a revision which came up for consideration before the learned Addl. Sessions Judge No. 3, Jaipur City. The learned Addl. Sessions Judge by his judgement. dated July 1, 1983, set aside the order of the Chief Judicial Magistrate dated Oct. 23, 1980 discharging the petitioner and remanded the case for deciding the case afresh according to law. In these circumstances the present revision has been filed by the petitioner Sribux Singh.
(3.)It was contended by Mr. Keshote, learned counsel for the petitioner, that no case is made out for framing charge against the petitioner. It is submitted that learned Chief Judicial Magistrate had committed no error in discharging the petitioner and the learned Addl. Sessions Judge has no jurisdiction to set aside the said order in exercise of his powers under revision jurisdiction. It was submitted that on perusal of the statement of Chhotu Singh himself shown that he was working as Chowkidar and it was during his working hours that the truck in question had been stolen by Surjeet Singh and Chhotu Singh had involved the petitioner in order to save his own liability. It is further submitted that Chhotu Singh in his statement admitted that he had himself come to a belief that Surjeet Singh was a Store-keeper at the time of initial meting and subsequently when Surjeet Singh came at 12.30 O' clock in the night then he had opened the gate. It is further submitted by Mr. Keshote that the accused Surjeet Singh in his statement under Sec. 313 Cr. P.C. had stated that he had taken the truck in question with the consent of Gopal Sharma and Chhotu Singh Chowkidar and he had stolen the truck with their connivance. Surjeet Singh further stated that he had given Rs. 20,000.00 to Gopal Sharma for this purpose. It is thus, contended that so far as the petitioner Shribux Singh is concerned, he has nowhere been named by the accused Surjeet Singh. It was also submitted that the petitioner was a Mistry and he has already retired from service find is suffering from tuberculosis.