J.N. Takru, J. - (1.) THIS revision by the State of UP is directed against the judgment and order of the learned Addl. District Magistrate (J) Agra, whereby he refused to set aside in revision the order of discharge passed in favour of the opposite parties by a learned 1st class Magistrate of that place.
(2.) IT appears that the police sent up 24 persons to stand their trial Under Sections 147, 323 and 379 IPC for mobbing the car of the High Commissioner of Nigeria and depriving his chauffeur of his wrist watch and cash. The learned Magistrate after going through the documents referred to in Section 173 Code of Criminal Procedure and the case diary held that, while there was sufficient evidence to proceed against seven of those persons, there was no evidence on the basis of which a charge could be framed against the opposite -parties and he therefore ordered their discharge. The State went up in revision against that order to the lower revisional court and when, it failed to get redress there, it preferred the present revision. In order to appreciate the contention of the Learned Counsel for the State, it is necessary to state the facts and circumstances on which the order of discharge is grounded. It appears that soon after the incident, referred to above, the SO of the circle concerned came to hear about it and he left at once for the spot. When he reached there the opposite parties who had been apprehended earlier, were made over to his custody and the Nigerian High Commissioner and his chauffeur identified them before him as the culprits. It further appears that the Nigerian High Commissioner and his chauffeur were not called at the test identification parade held in connection with the identification of the culprits. The learned Magistrate took the view that as the identification of the opposite -parties by the Nigerian High Commissioner and his chauffeur before the SO was hit by Section 162 Code of Criminal Procedure it could not avail the prosecution for establishing the complicity of the opposite -parties in the incident in question and further that is those two persons were not called to identify the opposite -parties in jail, there was no evidence against them on the basis of which a charge or charges could be framed against them and he therefore ordered their discharge.
(3.) ON behalf of the State a two -fold contention was advanced in support of this revision. The first contention was that the identification of the opposite parties by the Nigerian; High Commissioner and his chauffeur as the culprits before the SO was not hit by the provisions of Section 162 Code of Criminal Procedure. His second contention was that, even if it were hit, the learned Magistrate could is till not pass the order of discharge as, those witnesses would have proved the complicity of the opposite -parties by identifying them at the trial. After hearing the Learned Counsel I am satisfied the while the first contention is not sound, the second contention is well -founded; with the result that this revision must succeed. I shall, therefore, deal with those contentions ad seriatim.;