CHANDRA BHUSHAN Vs. STATE OF U P

JUDGEMENT

(1.) A first information report was lodged at police station Zamania under Section 4361.P .C. communicating inter alia that the accused applicants here had caused mischief by fire to the Madai used for residence by the informant Babban. It also communicated that an Ekka purchased on loan was also reduced to ashes. The matter was investigated and a chargesheet was submitted by the police under Section 436 I.P.C. pertaining to crime No. 76 of 1989. The accused appeared on the service of summons etc. and were admitted to bail. On 29-9-1989, the accused made an application possibly conveying that the police had wrongly submitted a charge-sheet under Section 436 I.P.C., though in fact a case under Section 435 I.P.C. could alone be thought of. They also seem to have desired that the charge be reduced to one under Section 435 I.P.C. and the case be heard accordingly. The Magistrate by his order dated 29-9-1989 recorded observations that only a Madai was burnt and it was not the residence in which the informant was living and the effects were kept therein or whether it was surrounded by walls and roofs and consequently be accepted the contention of the accused and proceeded to frame a charge under Section 435 I.P.C. Aggrieved by this order, the informant Babban went in revision before the Sessions Judge, Ghazipur and by an order dated 5-2-1990 the Sessions Judge set aside the above order and directed the court to adopt procedure holding that charge under Section 436 I.P.C. should be framed. Chandra Bhushan Singh and Ram Sagar Singh have come up in this revision before this Court against this order.

(2.) I have heard the learned counsel for the applicants and the counsel for Babban Ram as well as the A.G.A. The grounds taken by the applicants are that none of them was served with the notice of the application of Babban Ram in revision and, therefore, the order was patently bad and against the provisions of natural justice. I will take up this aspect a little later.

(3.) The other ground was that the finding of the Magistrate that during the investigation it was not found in the statement of the witnesses that Madai which was burnt was used for dwelling, was a finding off act and could not be disturbed by the court of revision and hence the order of the Sessions Judge is illegal. It may be true that a finding of fact arrived at by a Trial Court may not be challenged by way of a revision but for that matter it has to be a finding, a finding based on real evidence and the matter should have been decided by a Trial Court. The instant case would not obtain with any of the above conditions. The finding recorded by the Magistrate that there was nothing to show that the Madai was used for dwelling and that evidence did not show as to what were the effects kept in, was patently against the statement of the witnesses interrogated by the police. Either these statements could not be considered in that case, the F.I.R. alone shall be the basis or if they were to be read, they would be read as a whole. It was improper to accept a suggestion on behalf of the accused without looking into the case diary itself. The informant Babban Ram had repeatedly stated during interrogation by the investigating officer that his Ekka GariT and the belongings of Shiv Pujan and others were all reduced to ashes. He had also stated that within this Madai there was a dera, a colocial for residence. Thus this observation of the Chief Judicial Magistrate was sopatently against the material on record that it could not be said to be a finding at all, and to be more precise it would be better to call a mistake of record which is considered to be a fatal for a Judicial Officer and is most undesirable of him.