ORDER G. Kumar, J.
1. This is a revision by the accused who had been discharged by the Magistrate after hearing the prosecution evidence, the statement of the accused and the defence witnesses. Badal Khan, complainant, then went up in revision to the Sessions Judge, who set aside the judgment and order of the Magistrate and sent back the case to him for being admitted to its original number and for framing a proper charge against the accused; hence this revision by the accused as stated above.
2. The case of the complainant was that on 14-9-1963 at about 6 p.m. he was returning home from his shop situate in mohalla Dariba in the town of Mainpuri. When the complainant reached near the flour mill of Chhote accused, all the 7 accused persons emerged from the mill premises and launched a concerted attack on him, with lathis. One of the accused Wali Ullah was further charged of having forcibly taken out a purse from the pocket of the complainant which contained a sum of Rs 100. On alarm being raised the eye-witnesses reached the scene of occurrence and saved the complainant. His allegation was that he went to the police station Kotwali for lodging a first information report but on account of social relations between the Kotwali police and the accused, who are influential persons of the town, the Head Constable did not scribe his report. He, however, got his injuries examined by the Medical Officer, Civil Hospital, Mainpuri at 7.80 p.m. on 14-9-1968. The complainant was found to have received 8 injuries over the front parts of his body, including 2 injuries on the head. The doctor also found that his right hand index finger had been fractured and his right arm dislocated.
3. The injuries of the complainant were duly proved by P. W. 1, Dr. M. L. Chaube. In his opinion all the injuries had been caused by some blunt weapon like Lathi and were 1/2 day old. On x-ray examination injury No. 6 was found to be a fracture of the right index finger which was grievous in nature. The doctor further deposed that the right hand of the complainant had been dislocated. The doctor had also examined Khuda Bux accused on 14-9-1963 at 9-15 p.m. and had found two abraded contusions, one on the left arm and the other on forearm caused by some blunt weapon like lathi.
4. On 15-9-1963 the complainant is alleged to have sent a telegram to the Superintendent of Police, Mainpuri, about the aforesaid occurrence, making a grievance that his report was not registered by the Kotwali police. He is then said to have sent a written complaint to the Superintendent of Police on 16-9-1963 under registered post. Having received no response in the matter from the Superintendent of police he filed a complaint before the Magistrate on 19-9-1963.
5. The complainant produced in Court the receipt of the telegram dated 15-9-1963, sent to the Superintendent of Police as well as the receipt of the registered letter dated 16-9-1963 and its acknowledgment receipt duly signed by the Superintendent of Police, showing that he had received a registered letter from the complainant on 17-3-1963. The complainant had summoned the original telegram as also the written report sent by registered post, from the office of the Superintendent of Police, Mainpuri. The record keeper produced the registered complaint but he stated that the telegram was not in the Record Room.
6. The eye witnesses supported the prosecution version of the accused having caused injuries to the complainant. Three of them also deposed about snatching of a money bag from the pocket of the complainant by Walli Ullah accused.
7. After examining the evidence of the prosecution and defence, the Magistrate came to the conclusion that there was considerable delay on the part of the complainant in filing his complaint for which, according to him, there was no explanation, while Khuda Bux accused had promptly lodged his report at the police station. However, it was pointed out by the learned Sessions Judge that there was prima facie evidence on the record to show that the complainant had acted with promptitude and had sent a telegram about the occurrence to the Superintendent of Police on 15th September, 1963, followed by a registered complaint to him on the 16th of September, 1963, and that having received no intimation from the Superintendent of Police, he had lodged a complaint before the Magistrate on 19th September, 1963. Under the circumstances the observation of the Magistrate to the contrary is obviously without foundation. In fact there was sufficient explanation for the so called delay in lodging the complaint.
8. The second criticism of the Magistrate was that two of the witnesses Jhabbu Lal and Sarnam, being residents of villages Bigharai and Banshi Gohra (which lie on the out-skirts of Mainpuri) were mere chance witnesses. It has to be remembered here that the occurrence had taken place in the thickly populated market of Mainpuri in the evening. The neighbouring villagers who happened to be present in the market place of Mainpuri during business hours could not be considered as chance witnesses. They have given reasonable explanation for their presence at the time and place of occurrence. The learned Sessions Judge has rightly held that the suggestion of the Magistrate that they were got up witnesses was not warranted by the material on record. At the end of his judgment the learned Sessions Judge observed:
"Thus after a careful consideration of the entire evidence on record, I am of the opinion that the order of the lower Court is wholly wrong and against the weight of the evidence on record."
In the result the learned Judge allowed the complainant's revision. He was, however, of the opinion that the Magistrate had discharged the accused under Section 253, Cri. P. C. which was set aside by him with the direction that the case be sent back to the trial Court which shall readmit the same to its original number and shall frame a proper charge against the accused persons and shall proceed to dispose of the case according to law.
9. While agreeing with the findings of the Sessions Judge that the case of the complainant deserved to be further enquired into, I am afraid, the observation of the learned Sessions Judge that the Magistrate had discharged the accused under Section 253, Cri P. C. is not quite correct Section 253 of the Code of Criminal Procedure contemplates discharge of the accused after recording the prosecution evidence and making such examination of the accused as the Magistrate thinks necessary and if he finds that no case against the accused had been made out, which, if un-rebutted, would warrant his conviction, the Magistrate shall discharge him. Sub-section (2) of Section 253, Cri. P. C. further provides that the Magistrate has a right to discharge the accused at any previous stage of the case if, for reasons to be recorded by him, the Magistrate considers the charge to be groundless. Thus Section 253, Cri. P. C. at the most, envisages a stage where the discharge order is made after consideration of the prosecution evidence and the statement of the accused. It does not contemplate a case where the defence evidence has also been led and considered. It need hardly be emphasised that in certain cases the defence evidence may go a long way in determining their fete. It has to be remembered that one of the charges brought against Wall Ullah accused was that of dacoity. Hence in the instant case the Magistrate was acting under Ch. XVIII, Cri. P. C. and was merely making an inquiry into a case triable by the Court of Session. Where discharge has been made out not only after considering the prosecution evidence and the statement of the accused but also after hearing the defence evidence, the case would be governed by Section 209, Cri. P. C., in a matter like the present where the Magistrate was making an inquiry under Section 208, Cri. P. C. into a case triable by the Court of Sessions. Therefore, here the discharge of the accused would not be under Section 253, Cri. P. C., which applies to cases where the Magistrate is holding a trial under Ch. XXI, Cri. P. C. But the citation of a wrong section by the learned Sessions Judge does not really affect the case in any big way, inasmuch as he had ample jurisdiction under Section 436, Cri. P. C. to send back the case to the Magistrate for further inquiry into the case in which the accused persons had been discharged. Nevertheless in such a case the Sessions Judge can only direct the Magistrate to make further inquiry into the complaint or the case in which the accused had been improperly discharged and no more. He cannot direct the Magistrate to frame a proper charge against the accused persons. It appears that Section 436, Cri. P. C. and the various authorities thereon had not been brought to the notice of the Sessions Judge at the time of the disposal of the revision by him.
10. In the result I dismiss the revision but modify the order of the Sessions Judge to this extent that the case would go back to the District Magistrate of Mainpuri who may him self make or direct any Subordinate Magistrate (other than Shri Mool Chand Singh) to make further inquiry into the case according to law. Let the record be sent down to the District Magistrate Mainpuri for necessary action as early as possible.