V.N.Varma - (1.) THIS revision is, directed against an order dated 20-9- 1976 passed by Additional Sessions Judge, Allahabad acquitting the opposite; party in a case under Section 379 IPC.
(2.) AT the relevant time (January 1975) the oppposite party was employed] in the Fort at Allahabad. According: to rules, every employee who enters the Fort in connection with his duty, is searched. Everything found on his person; is noted in a Register. After duty hours; the employees are again searched at the gate of the Fort and then they are allowed to leave for their homes. As per the above rules, on 28-1-1975, all about 4.45 P. M., the opposite party was searched at the Fort gate after duty hours. This search took place in the presence of Capt. Yadvir Singh. The opposite party was found in illegal post session of : (1) a generator switch ; (2)T. M. B.-1 ; (3) Clutch self starter 1 (4) Pinions-3 ; (5) Carbon brush-4 and (6) One O. C. Paint small tin. Information about the recovery of the above things from the person of the opposite party was given to Major Biswas. Major Biswas reported the matter to the police:. S. I. Mohammad Wasim Khan went to the spot, put the opposite party under arrest and took charge of the things that were said to have been recovered from the possession of the opposite party. After investigation, the opposite party was sent up to stand his trial under Section 379 IPC. The opposite party pleaded not guilty and repudiated the truth of the allegations made against him. He alleged that he took active part in Union activities which was not liked by the officers of the Fort and so this false case was trumped up against him. The learned trial Court found the prosecution case proved .and it, therefore, convicted the opposite party under Section 379 IPC and sentenced him to six months' R. I. Aggrieved, the opposite party went up in appeal to the Court of Session. The Sessions Judge found the case against the opposite party to be doubtful and gave him the benefit of doubt and acquitted him. Aggrieved, the complainant has come up in revision to this Court.
(3.) I have heard the learned counsel for the parties at sufficient length and have also perused the record of the case. In my opinion, it was not a case in which the opposite party should have been acquitted simply, because of some technical lapses here and there. The statement of Capt. Yadvir Singh clearly went to show that several articles as detailed above had been recovered from the possession of the opposite party when he was searched at the Fort Gate after duty hours. Capt. Yadvir Singh is a responsible man and it was not proper that his evidence should have been treated in a casual manner. The opposite party had been searched when he entered the Fort on the morning of 28-1-1975, but nothing illegal or objectionable was found with him at that time. After duty hours he was again searched at the Fort Gate and the things noted above (all government property) were recovered from his person ; some had been kept by him in the pockets of his trouser, some in his jhola and some in his Janghia. To doubt the recovery of these things from the possession of the opposite party simply . because he had been smuggling them out in a crude manner, would not be proper. The court below doubted the recovery of the disputed things not only on this ground but also on the ground that they had not been produced in Court. It is true that they were not produced in Court and the prosecution was certainly at fault on this score. It appears that those things were not produced in Court because the I. O. took no interest in the case. Surprising as it may sound, he did not appear even as a witness in Court. These lapses notwithstanding, I think it was not a case in which the opposite party should have been acquitted on technical grounds. The court below should have seen that the articles said to have been recovered from the possession of the opposite party were produced in Court and properly exhibited. The Court below should also have made attempts to secure the attendance of the I. O. as a witness. As miscarriage of justice has been done in this case, I think this revision must be allowed and the case tried afresh. In the result, I allow this revision and set aside the order of acquittal passed by the court below. The case is remanded for retrial in the light of the observations made above. The opposite party is directed to appear in the Court of the Magistrate on 16-1-1978. The Magistrate is directed to give priority to this case and decide it as expeditiously as possible. Revision allowed.;