RAM ASHRAY SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THIS revision has been directed against the order dated 6-11-1986 passed by the Special Judge, Varanasi allowing Criminal Revision No. 470 of 1986 and setting aside the order dated 22-10-1986 passed by the II Addl. Munsif-Magistrate, Varanasi in Criminal Case No. 382 of 1985 under Section 382,i. P. C. P. S. Rohania, dis trict Varanasi.

(2.) IT is alleged that on 26-11-1983 at about 6 a. m. the applicants and one more unknown person armed with gun, countrymade pistol, spear and Gandasa reached the plot in dispute and forcibly took away the paddy crop of the complainant Shiv Shanker Pandey. The matter was reported to P. S. Rohania. After investiga tion by the police, chargesheet was sub mitted against all the four accused-ap plicants. Before the learned Magistrate an affidavit was filed by one of the accused on 4-12-1984 to show that there was a long criminal litigation between the parties, put of three were concerned only to the cutting of paddy crop from plot No. 264 and a regular suit was pending in connection with the ownership in the civil court. Some proceedings had already taken place be tween the parties before the Revenue court. On consideration of the documents on record the learned Magistrate came to the conclusion that it was doubtful that any prima facie charge was made out against the accused persons and he passed an order discharging the accused persons by the order dated 22-10-1986.

(3.) THE second contention of the learned counsel for the applicant is that the learned Sessions Judge entered into reap praisal of the evidence and substituted his own findings for which he was not at all competent. He was also influenced by extraneous materials which was not supplied under Section 173, Cr. P. C. At the most, he could have remanded the case back to the court below to pass fresh order in accord ance with law but the order of revisional court is itself legal and sustainable in law. It is true that the learned Sessions Judge has also considered the affidavit filed on behalf of the complainant, which could not have been considered as the affidavit and other documentary evidence do not form part of the record under Section 173, Cr. P. C. I have examined relevant paper. It is certain that the learned Magistrate has not examined the materials submitted under Section 173, Cr. P. C.