M. P. Saxena, J. - (1.) THIS is an application for review of the order dated 8-5-1975 passed by this Court in a criminal case.
(2.) BRIEFLY stated the facts giving rise to this application are that opposite parties nos. 1 to 3 were the bhumi-dhars in possession of plot no. 1179/1 situate in village Bachhawal, P. S. Tarwa. district Azamgarh. In the consolidation proceedings this plot was allotted in the chak of the mother of the applicant. It is alleged that in April 1969 the applicant's mother entered into possession of this plot and began to have it cultivated by the applicant and his younger brother. Some time after the opposite parties 1 to 3 managed to obtain an order for mutation of their names against plot no. 1179/1. Therefore, the applicant's mother, namely, Smt. Kali Devi filed writ petition No. 3945 of 1970 in which this Court passed an order on 31-8-1970 restraining the opposite parties nos. 1 to 3 from intefering with her possession over the said plot. Service of notice of this order is said to have been effected on the said opposite party but inspite of it they came on the said field on 14-11-1970 and belaboured the applicant and others and voluntarily caused hurt. Its report was lodged at the police station and a case is said to be pending on its basis. It is further alleged that on 20-3-1971 at about 10 A.M. the opposite parties nos. 1 to 3 forcibly cut away the (sic) crop of the applicant's mother from the said plot causing damage of Rs. 200, This occurrence was witnessed by Sita Ram, Umrao Singh, Om Prakash, Ram Sumeran and others. A report was lodged about this occurrence at the police station but it took no action and, therefore, on 31-3-1971 an application was moved to the S.P. under whose order investigation was conducted but in September 1972 the applicant came to know that a final report was given in the case. Hence the applicant filed a complaint under section 379 I.P.C. The opposite parties nos. 1 to 3 denied the said allegations and gave out that after the allotment of the chak in favour of Smt. Kali Devi they got the entries corrected and the Deputy Director of Consolidation allotted this plot in their favour. According to them, the crop belonged to them and they had bonafide cut away the same. The learned Chief Judicial Magistrate, Azamgarh, dismissed the complaint and acquitted the opposite parties nos. 1 to 3 on the ground that there was nothing on the record to show that the opposite parties had knowledge of the order dated 31-8-1970 and that there being bona fide dispute about right to the land and the crop in dispute no case under section 379 I.P.C. was made out, as the parties could have their dispute decided by the civil court. Against this order the applicant moved an application under section 378 (4) of the new Criminal Procedure Code for leave to appeal. It was heard on 8-5-1975 and as no satisfactory ground for vacating the order of acquittal was made out the appeal was summarily rejected. Now the applicant has moved an application for review of that order on the ground that this Court had rejected the appeal mainly on the ground that there was no material on the record to show that the opposite parties 1 to 3 had knowledge of the order dated 31-8 1970 passed by the Hon'ble Court. According to him, he inspected the record of the trial court after the said order and came to know that there is mention of the said order in C H. Form No. 23 and this endorsement is dated 7th November, 1970. Therefore, it is alleged that the opposite parties nos. 1 to 3 will be deemed to have knowledge of the order passed by this Court from 7-11-1970. A copy of C H. Form No. 23 has also been filed to support it.
(3.) I have heard the learned counsel for the applicant and have given my anxious consideration to the whole matter. He has not referred to any provision under which this application for review of the judgement passed in a criminal case may be maintainable. As held in the case of Kale v. King Emperor, XXXV ILR 143 at p. 145 the High Court will not review its order passed in appeal or revision even on the ground of discovery of fresh evidence because such evidence ought to have been produced at the trial. For a number of reasons it cannot be believed that the copy of C.H. Form no. 23 filed in the trial court bore the date 7-11-1970 upto the date the case was decided by the trial court. In the first place if this date existed in C.H. Form No. 23 the applicant, who was a complainant, would have drawn the attention of the trial court to this fact and, more so, when the matter for determination was whether the opposite parties nos. 1 to 3 had knowledge of the order passed by the High Court. Secondly, the copy of C.H. Form No. 23 originally filed with the grounds of appeal in this court does not bear the date when the said endorsement was made. The copy was certified to be correct. It appears that some time after 8-5-1975 when the appeal was rejected, necessity arose for giving the date. Lastly, it is also important to state that according to the allegations in the review application, the applicant inspected the record of the trial court after 8-5 1975 and came to know that copy of G.H. Form No. 23 filed in the said case bears the date of the endorsement as 7-11-1970. Its true copy has been filed and is Annexure I. This true copy does not purport to have been issued by the trial court. On the other hand it purports to have been issued by the Lekhpal of Ghakbandiand is dated 1-12-1970. Copy (Annexure A-2) filed in the trial court does not show the date when it was obtained. Be that as it may, a reasonable doubt is created that the endorsement bore the date 7-11-1970 prior to the rejection of the appeal. It is further important to slate that even on the application for review the applicant is not inclined to give the date when service of the notice of the said order passed by the High Court was effected on opposite parties 1 to 3. According to the first information report, the service was duly effected but in paragraph 8 of the grounds of appeal the allegations are that the opposite parties will be presumed to have knowledge of the order of the High Court on account of the endorsement made in C.H. Form No. 23 which is a public document. It is contrary to the allegations that the order of the High Court was served on the opposite parties. .;