- (1.) THIS is a revision application against the order of the learned temporary (Additional) Sessions judge of Gonda setting aside the order of discharge passed by Sri Gopal Lal Shah, Special magistrate, Gonda. The case arose out of a complaint made by one Satya Narain against five accused persons, namely Mahadeo, Lalta, Chhedi, Mata Prasad and Pearey for having committed offences under Sections 147, 323, 452 and 395, Penal Code. It would appear that Satya Narain complainant had a shop in village Paraspur. The landlord of the building was Mahadeo accused and the rent of the said shop was RS. 2-8-0 per mensem. The complainant was carrying on the profession of a goldsmith in that shop and kept some gold and silver also in the shop in connection with his work. According to the allegations of the complainant, on 17-10-1950, a person alleging himself to be a peon of the civil Court came to the shop and told him that he had come to eject him and to deliver possession of the shop to the accused. He was accompanied by five persons. These five persons were arrayed as accused in the complaint. It was alleged that these persons beat him with fists and kicks. They dislodged the safe from the masonry and placed it on the road. Twenty-two bhars of gold, 1100 bhars of silver, a chair, a dhoti, an account-book, some planks, some utensils and a chadar were left inside and locked therein by the complainant's party. A sub-inspector of police also happened to arrive on the scene shortly after. The accused were present on the spot at the time. The complainant had no knowledge of any civil Court decree of ejectment against him and according to his allegations even if any such decree was passed, it must have been obtained ex parte and by practice of fraud by the accused. On the above allegations he filed the aforesaid complaint under Sections 323, 147, 452 and 395, penal Code.
(2.) ON behalf of the complainant, six witnesses were examined. The learned Magistrate who recorded the evidence was not convinced that the aforesaid witnesses were trustworthy. He accordingly passed an order on 3-4-1951, discharging the accused under Section 253, Criminal p. C.
(3.) THE complainant Satya Narain moved an application before the learned temporary (Additional) Sessions Judge of Gonda, who set aside the above-mentioned order of discharge and ordered further enquiry into the complaint. The ground on which the order was set aside by the lower Court was that the complainant had also mentioned Section 395, Penal Code as one of the offences which was committed by the accused, and an offence under Section 395, Penal code was exclusively triable by the Sessions Court. The Magistrate, should therefore have proceeded under chap, XVIII, Criminal P. C. and not passed an order of discharge under Section 253, Criminal P. C.;