J. C. Mishra J. - (1.) THIS revision has been filed against the order dated 14th December, 1983 passed by IVth Additional Sessions Judge. Jhansi allowing the revision preferred by the complainant and setting aside the order dated 2nd March, 1982 passed by the Judicial Magistrate, Mau-Garotha discharging the accused for offences punishable under Section 500/501, I.P.C.
(2.) THE learned counsel for the revisionist contended that the Magistrate had discharged the accused after considering the evidence on record and the revisional court had no jurisdiction to reverse the finding. A perusal of the order passed by the Magistrate would show that no finding was recorded to indicate that from the unrebutted evidence of the complainant and his witnesses, no offence is made out. He referred to the statement of the complainant, who was examined as P.W. 2 and observed that he supported the complaint case that the pamphlets were dated 14th October, 1978 and the accused Munni Lal had distributed the defamatory pamphlets in the public. THE learned Magistrate, however, discarded the evidence on the basis of photostat copy of a receipt, which was filed by the accused. This receipt was dated 17th October, 1978. This document was not proved. In view of this receipt, the learned Magistrate held that the payment for printing of the pamphlets was made by Kishori Lal on 17th October, 1978. THE learned Magistrate inferred that since the payment was made on 17th October, 1978 the pamphlets must not have been available on 14th October, 1978 for distribution. THE revisional court held that in view of the receipt, no such inference could be drawn that the pamphlets were not available for distribution on 14th October, 1978. This inference cannot be said to be erroneous. Firstly, the receipt has not been proved and, therefore, the Magistrate committed illegality in taking this defence evidence into consideration. Secondly. merely on account of the fact that the payment was made on 17th October, 1978, it could not be held that the pamphlets were also handed over on the same date. It is possible that the pamphlets would have been given to the accused on 14th October, 1978 and Kishori Lal would have made payment on 17th October, 1978. Furthermore, without the receipt being proved, it could not be taken into consideration for discarding the evidence of the complainant. At appropriate time, the complainant can show that this receipt is an ante-dated document. THE complainant had stated that the pamphlets were dated 14th October, 1978. Merely, on account of receipt, the evidence of the complainant that the pamphlets which bore the date 14th October, 1978 were distributed on the same date. The learned Magistrate also discarded the statement of P.W. 1 on the ground that in the cross-examination, he could not tell whether at 9.30 a.m. on 14th October, 1978 he was present in the school or not. It may be mentioned that while framing charge, the Magistrate is not required to consider the evidence meticulously to find whether the prosecution case is proved to the hilt or not. He has only to consider the evidence to form an opinion whether there is ground for presuming that the accused has committed offence. He can only discharge the accused under Section 245, Cr. P.C. if he considers that no case against the accused has been made out, which if unrebutted would warrant his conviction. The learned Magistrate without considering this aspect discharged the accused Munni Lal as he found that the evidence of the complainant and his witnesses was not reliable in view of the receipt filed by the defence. The order passed by the Magistrate was patently Illegal and the revisional court committed no illegality in setting aside that order in exercise of the revisional jurisdiction. The learned counsel for the revisionist contended that the case is very old and on account of delay in trial, the accused in entitled to acquittal. Learned A.G.A. on the contrary contended that the trial could not proceed in view of the stay order granted by this Court on 8.2.84. The learned counsel for the revisionist then contended that the incident had taken place in the year 1978 and the case could not proceed till 1982. In absence of record, the plea of the revisionist cannot be considered as it cannot be found as to when the accused was summoned. This plea may be raised by the revisionist, in the trial court, if so advised.
(3.) THE revision is dismissed. THE stay order stands vacated. THE learned Magistrate shall dispose of the case expeditiously.;