M.M.PUNCHHI, J. - (1.) THIS is a revision petition against the order of Sh. A.P. Chaudhary, Sessions Judge, Rohtak, whereby he set aside an order of discharge passed by the Judicial Magistrate First Class, Rohtak and required of him to frame charges against the petitioner, which appear to have been made out from the prosecution evidence, and thenceforth proceed to try the accuse. The facts, as broadly stated, are these : The complainant Jagdish Lal had suffered an ejectment order. Mahabir Bailiff, petitioner No. 6, accompanied by petitioner No. to 5, the landlords party had reached the shop in question on 25.2.1981 to effect eviction. According to the complainant Jagdish lal, the time then was 8.30 A.M. and he too incidentally reached there. He found Surinder Kumar and Mahadev, accused-petitioners, breaking open the lock of the shop with hammers. The complainant asked the bailiff accused-plaintiff whether he had got an order for breaking open the lock from the Court. The bailiff did not show any such order. Thus mentally obstructed, the accused persons then threatened the complainant that he would be killed if he came near them. Then accused-petitioner Nos. 1 to 5 broke open the lock and threw away the goods lying in the shop. On alarm raised, Sant Lal, Tirath Dass and Aishi Lal, PSW, reached there as also others. When the accused were asked not to behave in a high-handed manner, they gave first blows to the complainant. When the complainant warned the accused that he was going to report the matter to the police, then two of the accused remarked that the police was their own. Thereafter the accused persons left giving a threat that they would kill the complainant and get the shop vacated. The complainant informed the police, but no effective action was taken. A few days later on 27.2.1982, he filed the complaint. After preliminary evidence, the accused were summoned by the learned Magistrate. Thereupon, proceedings, as envisaged under section 244 of the Code of Criminal Procedure, commenced. The learned Magistrate examined all such evidence as was produced in support of the prosecution. As is the settled practice in such matters, the accused persons availed the right of cross-examination and avowedly made in-roads in the prosecution case. In particular, emphasis was laid on the report of the bailiff, Exhibit P2/A, introduced by the prosecution, which revealed a different version than that given by the complainant. The learned Magistrate enumerated reasons to hold that no case had been made out against the accused persons and accordingly discharged them.
(2.) THE complainant went up in revisions before the Sessions Judge, Rohtak and bemoaned that the learned Magistrate had exceeded his powers by disposing of the matter as if it was a judgment of acquittal in a final case. The precise objection was that at the stage of section 245 of Code of Criminal Procedure, the learned Magistrate had only to find out a prima facie case and he could not have weighed the evidence doubting the prosecution story. The learned Sessions Judge in paragraph 7 of his order, has noted the infirmities pointed out by the learned magistrate. These were that there was contradiction in the time as suggested by the complainant and on the other hand by the accused. There was no proof whether any complaint was lodged with the police. No medical examination was available to corroborate the complainant. Tirath Dass PW was possibly a relation of the complainant. And lastly the complainant had failed to produce the receipt relating to creation of fresh tenancy alleged to have commenced a few days earlier to the incident.
(3.) THE learned Sessions Judge noticed that the defence version of the accused was that they went to the spot at 11.30 A.M. when the shop was open and, in accordance with the warrants of possession, the goods of the judgment-debtor were taken out, but, when he offered resistance, thereafter the further proceedings were stopped. But this version, according to the learned Judge, was still to be proved and put before the Court. For the present, the Court had only on version and that was the version of the complainant. The learned Judge then took the view that the stage had not arrived before the Magistrate to consider contradiction in the statements of the witnesses or to evaluate the testimony with that strict standard. Finally, the view taken was that since the incident was practically admitted, the Court was required to determine which out of the two versions was correct and that would only be done at the final stage and not at the stage of consideration of charge. Therefore, it was viewed that the evidence already on the record, if unrebutted, could possibly lead to a conviction.;