KALLU Vs. SHAHID ALI

JUDGEMENT

(1.) This revision is directed against the order dated 6-8-1983, passed by learned Sessions Judge, Bahraich in Criminal Revision No. 50 of 1983 whereby he allowed the revision of opposite party No. 1 by setting aside the order dated 23-4-1983. passed by VII Addl. Munsif Magistrate Bahraich.

(2.) This revision arises out of the following circumstances : At about 7.00 - 8.00 p.m. on 27-9-1981, opposite party No. 1 was taking food in the inner courtyard of his house and a lantern was also burning there. The revisionists along with two other persons entered into the side courtyard and revisionist Beni Madho exhorted the revisionist Kallu to kill opposite party No. 1. Thereupon Kallu fired a shot at opposite party No. 1, Shahid Ali from his country made pistol with the intention to kill him but the shot got misfired. Shahid Ali raised an alarm which attracted to the scene of occurrence several persons. The culprits fled from the house but while running out of the house, the countermand pistol carried by Kallu fell down at the door of Shahid Ali. The persons who reached the place of occurrence on the hue and cry raised by Shahid Ali, identified the culprits in the torch-light. Shahid Ali lodged a written report of this incident the next day, i.e. 28-9-1981 at 4 p.m. and deposited the country-made pistol together with the spent cartridge at Police-Station Kotwali Dehat, Bahraich. On the basis of this written-report, a case under Section 307, I.P.C. was registered and investigation followed. However, the Police submitted a final report under Section 169, Cr. P.C. Before the final report could be accepted by the learned Magistrate, Shahid Ali, who is the complainant of the case, lodged a protest application in the Court of learned Magistrate on 16-3-1983. By means of this protest application, he clearly alleged that the Investigating Officer had colluded with the accused persons and no interrogation of the witnesses named in the F.I.R. was made by the Investigating Officer either. Accordingly the complainant prayed, by means of the said application, that the statements of the witnesses may be recorded and that the final report submitted by the Police may not be accepted and further that the accused persons he summoned for trial in accordance with law. Together with this application, the complainant also filed affidavits of the eye-witnesses, mentioned in the F.I.R. The learned Magistrate requisitioned the country-made pistol and spent cartridge from the Investigating Officer but he was intimated by the police concerned that the country made pistol and spent cartridge had been destroyed on the assumption that the final report had been accepted. The learned Magistrate, by means of the order dated 23-4-1983, came to find that there were no adequate grounds to summon the accused persons and he rejected the protest application, filed by the complainant, Shahid Ali. Aggrieved by this order of the learned Magistrate, Shahid Ali preferred a revision in the Court of Sessions Judge, Bahraich. This gave rise to Criminal Revision No. 50 of 1983. The learned Sessions Judge, by means of the impugned order, allowed the revision and set aside the order dated 23-4-1983, passed by the learned Magistrate, and further allowed the protest application dated 16-3-1983, filed by Shahid Ali in the Court of learned Magistrate and also directed the learned Magistrate to reject the final report, submitted to him and proceed further against the accused persons for the offence under Section 307, I.P.C. It is this order of the learned Sessions Judge which has been challenged by means of revision, filed by the accused persons, namely, Kallu and Beni Madho.

(3.) I have heard the learned counsel for the revisionists as also the learned counsel for the opposite party No. 1 and the learned Government Advocate. The record of the Court of learned Magistrate has also been perused by me, as also the impugned judgment and order of the learned Sessions Judge.