- (1.) IKRAM-ul-Bari, J. List revised. Shri M. D. Singh, Advocate for the appellant is present. Learned A. G. A. is also present. None however, appears on behalf of the respondents.
(2.) MUNNI Lal the appellant was the complainant for before the learned Magistrate. The appellant had filed a com plaint before the learned Magistrate against the six respondents alleging com mission of offence punishable under Sec tion 427/504/506 I. P. C. by the respondents. The version in the complaint was that the appellant is holder of plot No. 149 in village Barbaripura. Its area is 10 Bighas. When he reached at his field as usual to look after it, he found the respon dents driving away a bullock cart through his brinjal field. The respondents had placed 5 mounds brinjals worth Rs. 100/-on the bullock cart, when he protested, the respondents abused and threatened him with death. He raised alarm whereupon the witness cited in the com plaint arrived at the scene and rescued the appellant. The respondents forcibly took away brinjals worth Rs. 100. He went to the police station and gave a written report to the Muharrir. When he requested for his copy, the Muharrir told him that his report could not be recorded. At that time Ramadhari respondent was present and talking to the Muharrir. He sent a written application by registered post to the S. P. , Ghazipur and when the police did not take any antion he has filed this complaint.
(3.) AT the trial Munni Lal appellant was examined as P. W. 1, Ram Jatan was examined as P. W. 2 and Shri Ram Singh was examined as P. W. 3. As against the com plaint version that Munni Lal had seen the culprits carrying the bullock cart through his field, he stated as P. W 1 that Rama Shanker was getting the brinjals picked out, that he himself was not picking up the brinjals, that the brinjals were placed in the Jholi meant for keeping Bhoosa. He also told that he did not give any report at the police station. The substance of the statement of P. W. 1 is that when he reached he only saw the bullock cart driven by the respondents from or through his field. How he could know that the brinjals have been picked out from his field has not been explained. P. W. 2 claimed that when he reached, the respondents were taking the bullock cart through the brinjals field and there were brinjals on the bullock cart weighing about 4-5 mounds which they had picked. In his cross examination, he claimed that the respondents were abusing and were picking up the brinjals at the same time. Obviously, P. W. 2 could not see the respondents picking up the brinjals if he had reached on the alarm raised by Munni Lal since he himself had not seen the picking up the brinjals. P. W. 3 stated that the respondents were carrying the 4-5 mounds brinjals in the bullock-cart after picking them from the field. In the cross examination, he told that when he reached, the bullock-cart had gone away; that 4-5 persons were sitting on the bul lock-cart. He further told the defence counsel that when he reached, the culprits were carrying the Jholi in which the brin jals had been placed. There is no assurance in the evidence that if there were brinjals on the bullock-cart the same has been picked from the field of the complainant. The varying statement of the witnesses in this regard failed to convince that if there were brinjals in the bullock-cart, the same belonged to the appellant. In this slate of evidence, the respondents were entitled to benefit of reasonable doubt. It is possible to disagree with some comments of the learned Magistrate in his judgment but the judgment and the order of acquittal cannot be said to be perverse. The appeal is, therefore, dismissed. Appeal dismissed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1999 (2) JIC 305 (All)] Allahabad High Court Present: M. C. Jain, J. Smt. Sheela & Ors. Versus State of U. P & Anr. Criminal Revision No. 1597 of 1984, decided on 5th May, 1999 Criminal Procedure Code, 1973, Sec tions 200 and 202-Recalling of process-Jurisdiction of Magistrate- Magistrate has ample power to recall order issuing process, if satisfied that it ought to have not been issued-1993 (30) ACC 664 (SC ). [para 5] Judicial finding RECALLING OF PROCESS -JURISDICTION OF MAGISTRATe Magistrate has ample power to recall order issuing process. Kailash Chaudhari v. State of U. P. , 1993 30 ACC 644 REFERRED TO JUDGMENt M. C. Jain, J,-I have heard learned counsel for the revisionists and learned A. G. A, for opposite party No. 1. 2. On a complaint by the opposite party No. 2, the Judicial Magistrate I Class, Bareilly summoned the present revisionists under Sections 395/397, I. P. C in case No. 419 of 1984. Aggrieved, they have preferred this revision. 3. It appears that initially that op posite party No. 2 had lodged an F. I. R. but the police had submitted final report. Op posite party No. 2 then filed a protest petition which was treated as complaint and after recording the evidence under Sections 200 and 202, Cr. P. C. the present order was passed. As per affidavit filed along with memo or revision, revisionist No. 2 Suresh had filed an F. I. R, on 1-9-1983 at 10. 15 p. m. under Sections 147/323/504, I. P. C. at Police Station Prem Nagar against certain persons including the present opposite party No. 2. The police after investigation had submitted charge-sheet. That means to say, cross case based on police report was there against certain persons including opposite party No. 2. 4. It has been argued by the learned counsel for the applicant revisionists that the learned Magistrate has summoned them under Sections 395/397, I. P. C. without application of mind and without there being any ingredient of the offences under Sections 395 and 397, I. P. C. 5. This Court has laid down in the case of Kailash Chaudhari v. State of U. P. , 1993 (30) ACC644 (SC), that a Magistrate is competent to recall the process issuing the order, if he is satisfied that it ought to have not been issued. Under the circumstances, it is directed that in case the revisionists file objections within two months from today before the Magistrate concerned to recall the summoning order he shall consider their prayer and pass a reasoned order. They shall have the liberty to appear before him in person or through counsel. The action shall ultimately follow on the reasoned order to be passed by the Magistrate one way or the other. The revision is disposed of with these observations. Revision disposed of. .;