- (1.) V. P. Mathur, J. This criminal revision is directed against the judg ment and order dated 11-4-1983 passed by Mr. Sushil Kumar, the then Sessions Judge of Pil ibhit. The learned Judge had partly allowed the Criminal Appeal No. 19 of 1983 He had upset the judgment of the Vth Additional Munsif Magistrate, Pilibhit dated 23-2- 1983 in Criminal Case No. 590 of 1982 in part.-The learned Magistrate had convicted Naresh Chandra Jauhari both under Sections 352 and 353, I. P. C. and sentenced him to six months rigorous im prisonment under Section 475, I. P. C. and to six months rigorous imprison ment under Section, 353 I. P. C. He had also directed the two sentences to run concurrently. The learned Sessions Judge set aside the conviction and sentence under Section 352, I. P. C. but maintained the conviction under Sec tion 353 of the I. P. C. but reduced the sentence awarded to two months rigorous imprisonment.
(2.) BRIEFLY stated, the facts of the case were that on 11-5-1931 the appel lant was a clerk in the Election Office of Pilibhit Collectorate and Mr. Sri Krishna Arya was posted as Sub-Divisional Magistrate, Pilibhit and perhaps was looking after the election omce also. It so happened that Sri Krishna Arya had returned from a meeting with the District Magistrate and after having taken his lunch,. he was in his Drawing- room, when at about 2. 45 p. m. Naresh Chandra Jauhari came to his house. He indicated that he had come to obtain signatures of Mr. Arya on some election office papers. It is con tended that Mr. Arya told him that he would sign the pap; rs in office and not at his residence. Then it is said that the applicant Naresh Chandra Jauhari misbehaved with Mr. Arya. There was some exchange of hot words and then Naresh Chandra Jauhari raised his hands which gesture indicated that he wanted to give a blow to the officer and thus assaulted him. The officer's Chaprasi who was present, intervened and when Mr. Arya told the accused-revisionist that he was going to ring the District Magistrate, the revisionist is said to have left the place. At 3. 25 p. m. that very day the first information report was lodged by Mr. Arya. It was duly investigated and a charge-sheet was submitted. The contention of the revisionist was that the whole story was bogus. He had definitely visited Mr. Arya at his house to have his signatures on certain election office papers but he neither assaulted Mr. Arya nor misbehaved with him. He gave out that he was at a loss to understand why he was being pro secution in this case. Two witnesses were examined on the side of the prosecution. Mr. Sri Krishna Arya entered the witness box as P. W. 1 in support of his case. He gave all the details of the occurrence. Strangely enough he was not cross-examined about the factum of the occurrence as well as the sequence in which it took place and the only cross-examination that was directed to him was to elicit that when the matter reached the District Magistrate subsequently there was a hush up of the matter by way of compromise and the revisionist begged to be excused and was promptly excused and thereafter Sri Arya had no complaint left against him. The District Magistrate even directed Mr. Arya to withdraw the case. The second witness for the prosecution was the Orderly who simply came to say that the present revisionist had visited Mr. Arya's house on that ciate and at that time, but he did not support the prosecution story regarding the assault or use of criminal force.
(3.) NEVERTHELESS on account of the uncontieverted testimony of Mr. Arya both the courts below accepted prosecution version of the occurrence. The Sessions Judge was, however, of the view that no case under Section 352 of the I. P. C. would be deemed to have been made out, because there was nothing on the record to show that the revisionist had gone to Mr. Arya's house after having made preparations to commit any offence. It appears that Mr. Arya as Sub-Divisional Magistrate of Pilibhit and perhaps in his capacity as Election Officer, was getting papers at his house and officials were visiting his also for official work. Under these circumstances, the learned Sessions Judge was justified in coming to the conclusion that the visit of the revisionist at the house of Mr. Sri Krishna Arya, in the absence of any evidence regarding his intention to commit trespass with a view to commit an offence cannot be covered by Section 452, I. P. C. The charge under Section 452, I. P. C. was, therefore, rightly found not proved. The learned Sessions Judge however was of the view that it was a case to be covered by Section 353, I. P. C. and not by Section 352, I. P. C. There is some importance in this case attached to the fact whether Section 352, I. P. C. will apply or Section 353, I. P. C. will apply and the basis of this is that Section 352, I. P. C. is comparatively a minor offence and it is not cognizable and is compoundable, while Section 353, l. P. C. defines a graver offence which is neither cognizable nor compoundable.;