Hon'ble S.C.Agarwal - (1.) HEARD Sri Dilip Srivastava, learned counsel for the revisionist, learned A.G.A. for the State and perused the material available on record.
(2.) NO notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he feels so aggrieved. This revision is directed against the order dated 21.5.2008 passed by Addl. Chief Judicial Magistrate, Court No. 11, Basti and order dated 2.8.2010 passed by Addl. Chief Judicial Magistrate-ll, Court No. 10, Basti in complaint case No. 2 of 2008 whereby, on the basis of final report submitted by the police and the protest petition filed by the complainant - opposite party No. 2, the protest petition was treated as complaint and by order dated 2.8.2010, the revisionists were summoned to face trial under Section 379 IPC. Learned counsel for the revisionists submitted that on the basis of F.I.R. lodged by complainant - opposite party No. 2, crime No. 356 of 2004 was registered against the revisionists under Section 379 IPC at PS. Cantt. After investigation, the police submitted final report. A notice was issued to the complainant to file protest petition. By order dated 21.5.2008, learned Magistrate accepted the final report, but treated the protest petition as a complaint to afford an opportunity to the complainant to lead evidence in support of his claim. The complainant examined himself under Section 200 Cr.P.C. and also examined Smt. Raj Patti as P.W.1, Holi Prasad as P.W.2 and Subhash as P.W.3. The allegations against the revisionists are that in the grove of the complainant, one jamun tree fell down due to storm. On 25.6.2004 at about 9:00 p.m., all the three revisionists cut away five mahuwa trees, one neem tree and one aownla tree standing on the grove of complainant situated in plot No. 74 kha and carried the same alongwith the fallen tree of jamun by tractor-trolley and placed the same at a saw machine in Amari Bazar.
(3.) ON the basis of statement of the complainant and the witnesses recorded under Sections 200 and 202 Cr.P.C., learned Magistrate summoned the accused to face trial under Section 379 IPC. Learned counsel for the revisionists submitted that when the final report was accepted by the Magistrate, he had no jurisdiction to treat the protest petition as a complaint. The acceptance of final report implies that the result of the investigation was accepted by the Magistrate as correct. The next contention is that the statements of complainant and witnesses recorded under Sections 200 and 202 Cr.P.C. are at variance with their statements recorded by the investigating officer under Section 161 Cr.P.C. It was further submitted that other witnesses, whose statements have been recorded by the police during investigation, have clearly stated that the theft was not committed by the accused persons and the trees cut away by the revisionists were situated on the land of the revisionists themselves. Learned counsel placed before me the statements of complainant and other witnesses recorded by the investigating officer to show that these statements do not prove the allegation of theft against the revisionists.;