- (1.) This is an application in revision against an order of the II Addl. Sessions Judge of Meerut, remanding the case to the District Magistrate with a direction that he should send the case to the Magistrate concerned for committing the accused persons to the court of sessions to stand their trial Under Section 218 IPC in respect of Anand Swarup Lekhpal and Under Section 218/109 IPC in respect of Bhagwan Sahai.
(2.) There are two applicants, Anand Swarup Lekhpal and Bhagwan Sahai. The case was Under Section 218 read with S. 109 IPC against these persons and it was alleged that plot No. 984 in village Chhabarya was in the cultivatory possession of the complainant Bhikku Singh and his brother but applicant Anand Swarup falsely, with intent to cause wrongful loss to the complainant, made an entry in the remarks column of the Khasra for the year 1361F showing possession of the accused Bhagwan Sahai The learned Magistrate, who enquired into the matter was of opinion that there was no prima facie case against the accused and, therefore, discharged them. The complainant went up before the Sessions Judge, and he has remanded the case as mentioned above. Aggrieved by that order Anand Swarup and Bhagwan Sahai have come up to this Court.
(3.) The learned Sessions Judge in his judgment has commented upon the evidence which is likely to prejudice the trial of the case even if the accused is later on committed to the court of sessions. He has practically expressed his opinion which he should have refrained from expressing, because it is likely to adversely affect the applicants. I do not wish to express any opinion on the evidence in the case and the expression of the opinion by the Sessions Judge shall also not in any way affect the trial of the case. So far as Anand Swarup Lekhpal is concerned, as has been held by the Sessions Judge there appears to be some prima facie evidence against him. Whether that can be believed or not or whether there was bona fide intention on his part or not is a matter to be gone into at the trial, and I do not want to say anything at the present moment. So far as Bhagwan Sahai is concerned, there does not appear to be any prima facie case against him. The Learned Counsel for the complainant, who has opposed this application, relied on the fact that the only possible inference was that Bhagwan Sahai was an abettor. If once he has been discharged on the ground that there is no prima facie case he cannot now be asked to go before the court of sessions on the ground that the inference should have been that he was an abettor. If there was no prima facie evidence and if the Magistrate has discharged him I do not think that in the revisional jurisdiction the case should have been ordered to be tried as against him.;