HAFEEZ Vs. STATE OF U P

JUDGEMENT

(1.) GIRDHAR Mafaviya, J. This revision has been filed against the order dated 15-7-91, passed by Sri U. P. S. Kushwaha, Special Judge/additional Sessions Judge, Bulandshahar, in Criminal Revision No. 234 of 1991. Hajji Khan v. Hafeez & Ors. , whereby the revisional Court had set aside the order dated 29-1-91, passed by Munsif Magistrate L. C. I. Bulandshahar in Crl. Case No. 1 of 1991 Hajji Khan v. Hafeez & Ors. , relating to the summoning of the applicants in that case under Sections 323, 427 and 504, I. P. C. The revisional Court found that instead of applicants being summoned for these sections, the applicants ought to have been summoned by the Magistrate under section 395, I. P. C.

(2.) I have heard Sri M. C. Singh and Sri N. I. Jafri and also learned Addl. Government Advocate.

(3.) IT is the matter of common knowledge that in the villages people do move out with a lathi in their hand. Normally the ballam is not carried by the persons when they are moving out but considering the fact that some times facts are exaggerated by the parties which is also not unknown, I think that on the basis of the allegations in the complaint, at the stage of summoning it would have been proper for the Magistrate to have summoned the accused persons only under Section 397 read with Section 149 I. P. C. Thereafter if during the trial the evidence could come of an unimpeachable character that ballam was not only brought by some of the accused persons but the accused had also threatened the complainant's side with ballam, it would always be possible for the Court at that stage to consider whether the ingredients of dacoity have also been brought out or not, unless that nature of evidence is available on record, the summoning of the applicants under Section 395, I. P. C. is not justified.