GANPAT SINGH Vs. ZORA

JUDGEMENT

(1.) THIS is a reference by the learned District Magistrate of Ajmer recommending that, a proceeding under Section 447/109, Penal Code which is pending against Thakur Ganpat Singh be quashed. Zora filed a complaint against Thakur Ganpat Singh, Lai Singh and certain other accused with the following allegations. The complainant was in possession of a plot of land. Lai Singh accused under the instigation of Thakur Ganpat Singh accused made a forced entry upon the plot of land. The Tahaihar-Magistrate summoned Thakur Ganpat Singh and other accused. A request was made to the trial court for exempting Thakur Ganpafc Singh accused from personal attendance. This prayer was not accepted. The trial Court directed that, summons be issued against Thakur Ganpat Singh accused for personal appearance in Court. Against this order passed by the Tahsildar-Magistrate a revision was filed before the Extra Assistant Commissioner. That revision was dismissed. A fresh revision was filed before the learned District Magistrate. The learned District Magistrate has made this reference by his order dated 7th December 199 for quashing the proceedings as regairia Thakur Ganpat Singh ac-oneed on the ground that, there is no material on the reoori to justify his conviction. I have heard the learned Counsel for Zora complainant Thakur Ganpat Singh accused and the learned Counsel holding brief for the Public Prosecutor.

(2.) A preliminary objection was raised od behalf of Zora complainant that the revision application to the District Magistrate was not maintainable in view of the dismissal of a similar revision application by the Extra Assistant Commissioner. Section 435, Criminal P. C. enables a High Court, a Sessions Judge, a District Magistrate or a Sub. Divisional Magistrate-specially empowered in this behalf to call for records of inferior Courts. Section 483, Criminal P. C. , consists of four Sub-sections. Sub-section. (2) lays down that, if a Sub-divisional Magistrate is not satisfied with any order of an inferior Court, such Sub-Divisional Magistrate haa to forward the record with his remarks to the District Magistrate. Sub-section lays down that, if any application under this section has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the other of them. There is no provision directing that a District Magistrate should not entertain a revision application after a similar revision has been rejected by a Sub-Divisional Magistrate. Under Section 438, Criminal P. C. i a Sessions Judge or a District Magistrate may make reference to the High Court. It appears that a Sub-Divisional Magistrate cannot make a direot reference to the High Court. Prom a persual of all these sections it appears-that the jurisdiction of a Distriot Magistrate and a Sub-divisional Magistrate in the matter of revision is not concurrent. It is therefore open to a District Magistrate to entertain a revision application even after tha dismissal of a, similar revision appliaation by a Sub-Divisional Magistrate. In the present case, the Extra-Assistant Commissioner dismissed the first revision on 23rd September 1949. The second revision application was filed before the Distriot Magis. trate on 6th October 1949, i. e. within a month from the dismissal of the first revision application. There was no undue delay in filing the second application. Of course there ia no statutory bar as regards limitation for filing revision applications. No doubt the first application before the Extra-Assistant Commissioner was largely concerned with the application of Section 206, Criminal P. C. But I find that other points were also raised in the first revision application. The learned District Magistrate was therefore fully competent to entertain the second revision application dated 6th October 1949.

(3.) NOW I turn to the merits of the revision. Certain witnesses stated before the Tabsildar that they heard from Lai Singh accused that : he had entered upon the land under the authority of Thakur Ganpat Singh. Of course, a confession of Lai Singh accused would not be enough for convicting Thakur Ganpat Singh. But the prosecution evidence is not over. It may be that, the complainant is in a position to produce direct evidence to prove that Thakur Ganpat Singh accused instigated Lai Singh accused to commit criminal trespass. It will not be proper to quash the proceedings simply because the evidence already recorded by the Court is not sufficient to warrant Thakur Ganpat Singh's conviction.