RAGHUBIR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This revision under sections 397/401 of the Code of Criminal Procedure 1973 (for short the Code) is directed is directed against the order dated 3-9-85 passed by 1st Additional sessions Judge Saharanpur allowing the revision and setting aside the order dated 3-9-85 passed by the Munsif Magistrate, Hardwar, where by the applications of kewala Nand Bhartiya, opposite party No. 2 for recalling the order dated 13-5-85. passed under section 256 was rejected.

(2.) The facts of the case arc few and simple and they are these. A complaint under scctioDs.500/501/502 of the I.P,C. was filed by opposite party No.28 against the applicant in the Court of Munsif Magistrate, Hardwar. Saharanpur and that was tried as summons case by the Magistrate under Chapter 20 of the Code. The complainant appears to have led -some evidence in pursuance of the procedure under section 254 of the Code, where the Magistrate proceedsT to hear the prosecution and, take all such evidence as was to be produced In support of the prosecution and also to hear the accused. But just after leading some evidence the complainant was absent on 13-5-85 and no counsel appeared on his behalf nor any witness in support of his, case was present in the Court. The learned Magistrate in view of the procedure under section 256 of the Code, passed an order that the prosecution evidence was closed and the calc was fixed on 23.5.85 for statement of the accused under section 313 of the Code: Against that order a restoration application was filed, by the complainant the opposite party No.2, but the same was rejected by order dated 3-9-85. Against that order a revision was filed before the learned Sessions Judge. Saharanpur and the same was allowed by the order dated 12-2-86 and the parties were directed to appear before the Additional Chief Judicial Magistrate, Saharanpur, and the learned Magistrate was directed to give opportunity to adduce evidence. Against that order the present revision has been filed.

(3.) Learned counsel for the application urged that in view of Section 256 or the Code, the Magistrate was justified in passing the order closing the prosecution evidence and directing the accused to be examined in view of Section 313 of the Code. It was urged that if on the adjourned date in a complaint case tried as summons case, the complainant did not appear, the Magistrate would have been justified to pass an order of acquittal against the accused and what the Magistrate did, was less than that, inasmuch as closing the prosecution case and directing the accused to be examined without ascertaining the veracity of the prosecution case. It was urged that the order passed in the revision by the learned Sessions Judge was liable to be set aside. Learned counsel for the State on the other hand urged that the order of the learned Sessions Judge was correct, inasmuch as the Magistrate could even acquit the accused on non-appearance of the complainant or in the absence of any evidence on his behalf. But he could not close the prosecution evidence and direct the accused to be examined under section 313 of the Code.