- (1.) GIRDHAR Mafaviya, J. This revision has been filed against the order dated 15-7-91, passed by Sri U. P. S. Kushwaha, Special Judge/additional Sessions Judge, Bulandshahar, in Criminal Revision No. 234 of 1991. Hajji Khan v. Hafeez & Ors. , whereby the revisional Court had set aside the order dated 29-1-91, passed by Munsif Magistrate L. C. I. Bulandshahar in Crl. Case No. 1 of 1991 Hajji Khan v. Hafeez & Ors. , relating to the summoning of the applicants in that case under Sections 323, 427 and 504, I. P. C. The revisional Court found that instead of applicants being summoned for these sections, the applicants ought to have been summoned by the Magistrate under section 395, I. P. C.
(2.) I have heard Sri M. C. Singh and Sri N. I. Jafri and also learned Addl. Government Advocate. This order governs both the criminal revision as a also the application under Section 482, Cr. P. C. The allegation as per perusal of the complaint indicates that on 27-12-90 the applicants are alleged to have gone to the filed of the complainant around 12. 00 noon and after abusing the complainant and his associates took away 80 kg. of wheat and 40 kgs. of fertilizer alongwith one plastic bucket. As this fact had been alleged in the complaint also in the statement under Sections 200 and 202, Cr. P. C. that some of the persons were armed with lathis and Mohabbat was armed with ballam, the learned Addl. Sessions Judge thought that the ingredients of dacoity had been made out on the evidence in this case.
(3.) IT is the matter of common knowledge that in the villages people do move out with a lathi in their hand. Normally the ballam is not carried by the persons when they are moving out but considering the fact that some times facts are exaggerated by the parties which is also not unknown, I think that on the basis of the allegations in the complaint, at the stage of summoning it would have been proper for the Magistrate to have summoned the accused persons only under Section 397 read with Section 149 I. P. C. Thereafter if during the trial the evidence could come of an unimpeachable character that ballam was not only brought by some of the accused persons but the accused had also threatened the complainant's side with ballam, it would always be possible for the Court at that stage to consider whether the ingredients of dacoity have also been brought out or not, unless that nature of evidence is available on record, the summoning of the applicants under Section 395, I. P. C. is not justified. Accordingly these applications are allowed and the order passed by the Courts below is set aside. The Magistrate concerned is directed to treat the summoning of the applicants in pursuance of his order dated 29-1-91, under Section 379 read with Section 149, I. P. C. alone. The Magistrate shall now proceed against the applicants under Sections mentioned above. The stay order granted in this case stands automatically discharged. Application allowed. .;