V.N.Misra, J. - (1.) THIS is an application in revision by Shyamdhar against the judgment and order dated 11th May, 1981, of Sri J. P. Singh, IV Additional Sessions Judge, Varanasi, in Criminal Appeal No. 309 of 1980 by means of which he remanded the case back to the learned Magistrate for re-trial.
(2.) VERY briefly stated, the prosecution case was that on 13-10-1976, Ramji Yadav, Reader of the court of the Consolidation Officer Gyanpur, was looking after the work of the Court. After lunch hours the applicant and three others demanded the file of Smt.Jaraswati v.. Kamla Shanker, because they wanted to look it up. Ramji Yadav, Reader, took out the file and kept it on the table, so that the applicant and others with him may be able to have a look at it, but when Ramji Yadav got busy in other work these persons took in the file of this case from the table and ran away with the file. A report of the incident was lodged at the police station and a case was registered, after investigations the applicant and three Others were prosecuted and were convicted by the learned Magistrate. On appeal the learned Additional Sessions Judge found that it was very necessary in this case to examine the S.O., P.S. Gyanpur and since he had not been examined he set aside the order of the learned Magistrate and remanded the case back to him with the direction that he shall record his evidence and then decide the case. It is against this order that the present revision is directed. In this case a Will was filed said to have been executed in favour of Shyam Dhar, Sarvjit, Ram Pyare and Kamla Shanker. These persons filed this will in the mutation case and on 13-10-1976 this Will disappeared. The prosecution allegations were that the file was taken away by the applicant and three others and they took out the Will from it but the contention of the applicant was that it was the other party, the informant of this case who had caused disappearance of the Will in collusion with the Reader of the court. There were thus two cross cases in respect of the theft of this Will. It was urged that the order of the learned Additional Sessions Judge was not proper because under section 391 (2) CrPC he could only direct additional evidence to be taken by the learned Magistrate but he could not order re-trial of the case and the evidence recorded by the Magistrate had to be sent to him and then he had to decide the case. It was also contended that by means of this remand the learned Additional Sessions Judge was only permitting a lacuna in the prosecution case to be filled up and this could not be done.
(3.) THE learned Additional Sessions Hudge found that the S. O., C. R. Chaudhary had not been examined in this case. It was absolutely necessary that he should have been examined, and because he [had not been examined, therefore, the applicant and others were prejudiced and it was for this reason that he remanded the case back to the Magistrate for re-trial, and directed that S. O , C. R. Chaudhary be also examined as a witness. It was, however, urged by the learned counsel for the opposite party that the impugned order of the learned Additional Sessions Judge was not made under section 391 (2) under which he could direct additional evidence to be taken and to be sent to him, but this was an order for re trial made by him under section 386 (b) (i) and he could certainly direct re-trial if he felt that it was necessary.;