- (1.) THIS revision has been directed against the order dated 6-11-1986 passed by the Special Judge, Varanasi allowing Criminal Revision No. 470 of 1986 and setting aside the order dated 22-10-1986 passed by the II Addl. Munsif-Magistrate, Varanasi in Criminal Case No. 382 of 1985 under Section 382,i. P. C. P. S. Rohania, dis trict Varanasi.
(2.) IT is alleged that on 26-11-1983 at about 6 a. m. the applicants and one more unknown person armed with gun, countrymade pistol, spear and Gandasa reached the plot in dispute and forcibly took away the paddy crop of the complainant Shiv Shanker Pandey. The matter was reported to P. S. Rohania. After investiga tion by the police, chargesheet was sub mitted against all the four accused-ap plicants. Before the learned Magistrate an affidavit was filed by one of the accused on 4-12-1984 to show that there was a long criminal litigation between the parties, put of three were concerned only to the cutting of paddy crop from plot No. 264 and a regular suit was pending in connection with the ownership in the civil court. Some proceedings had already taken place be tween the parties before the Revenue court. On consideration of the documents on record the learned Magistrate came to the conclusion that it was doubtful that any prima facie charge was made out against the accused persons and he passed an order discharging the accused persons by the order dated 22-10-1986. The State preferred Criminal Revision No. 472 of 1986 before the Ses sions Judge against the order of discharge of the accused persons. The learned Sessions Judge, after considering the material on record, allowed the revision and set aside the order of the learned Magistrate. The case was sent back to the court concerned for decision afresh in accordance with law and in the light of the observations made in the body of the judgment dated 6-11-1986 passed by the learned Sessions Judge. The learned counsel for the_ ap plicants challenged the order of the Special Judge/addl. Sessions Judge on the ground that the accused had already been dis charged under Section 239, Cr. PC. only after considering the police report and the documents sent with it under Section 173, Cr. PC. and the Magistrate came to the conclusion after examining those docu ments and giving opportunity of hearing to the prosecution as well as the accused and the charge levelled against the accused was groundless. Once an order of discharge is passed under Section 239, Cr. PC. with the reasons therefor, even then the order may be erroneous but the same will amount to acquittal as no charge was prima facie made out against the accused on the basis of the police report as such that order would not be revisable. At the most that could be chal lenged under Section 378, Cr. PC. I do not find any substance in the submission of the learned counsel for the applicants inasmuch as in case the order of the learned Magistrate is influenced by some other ex tenuating materials excluding the material on record the magistrate ignores or excludes to consider part of materials submitted under Section 173, Cr. PC. the order can be quashed by the appropriate court. The learned Sessions Judge was perfectly jus tified in entertaining the revision against the defective or erroneous order as no ap peal against the order of discharge lies under any statutory provisions of law.
(3.) THE second contention of the learned counsel for the applicant is that the learned Sessions Judge entered into reap praisal of the evidence and substituted his own findings for which he was not at all competent. He was also influenced by extraneous materials which was not supplied under Section 173, Cr. P. C. At the most, he could have remanded the case back to the court below to pass fresh order in accord ance with law but the order of revisional court is itself legal and sustainable in law. It is true that the learned Sessions Judge has also considered the affidavit filed on behalf of the complainant, which could not have been considered as the affidavit and other documentary evidence do not form part of the record under Section 173, Cr. P. C. I have examined relevant paper. It is certain that the learned Magistrate has not examined the materials submitted under Section 173, Cr. P. C. I have gone through both the judg ments of the courts below and I find that the learned Magistrate was not justified in look ing into the affidavit which has been referred to by him and overlooking the material under Section 173, Cr. P. C. he was required only to confine and examine the materials submitted under Section 173, Cr. P. C.;