Jagat Narayan, J.C.
1. These are connected revision applications. I have heard the learned Counsel for the parties and have perused the evidence on record. Naththoo applicant filed a complaint under Sections 147 & 392 I.P.C. against Anok Singh & 8 others in the Court of the Magistrate on 24-12-54. After taking evidence under Section 202, Cr. P. 0., all the nine persons were summoned under Section 395, I.P.C. The applicant examined himself and 4 other witnesses Chappa, Jukku, Tirra and Kanhai. The Magistrate examined Shri Madho Prasad Dy. Superintendent of Police under Section 540 Cr. P.C. He framed a charge under Section 392, I. P. C against Anok Singh and discharged the remaining 8 accused persons without giving his reasons for doing so as required under Section 209 Cr. P.C. The applicant moved the Additional Sessions Judge under Section 437, Cr. P. C but his application was rejected. Against that order criminal revision No. 88 of 1955 has been filed. Naththoo's case was that all the nine accused persons came together armed with guns, spears and lathis and surrounded him in Patera Bazar where he had gone to sell cloth. It was alleged that Anok Singh slapped him and took out Rs. 42/- from his pocket. When he went towards the police station some of the other accused persons took away two 'thans' of cloth from his shop. This story was supported by his other witnesses also. The learned Additional Sessions Judge was of the opinion that it could not be said whether the 8 accused persons shared the intention of Anok Singh. Under Section 391 where the whole number of persons conjointly committing a robbery, and persons present and aiding such commission, amount to five or more, every person so committing or aiding is said to commit dacoity. If one person commits robbery and 4 persons aid such commission the offence of dacoity is committed. But these 4 persons should aid the person committing dacoity. That they must do intentionally by any act or illegal omission.
It is therefore necessary that all the persons should share the common intention of committing robbery. In the opinion of the learned Additional Sessions Judge it was not proved upon the evidence on record that they shared such an intention. Having considered the evidence on record I am satisfied that interference in revision with this finding is not called for. Chappa and Cukkoo appear to have named only Anok Singh as the person who committed the crime before the Dy. S, P. I accordingly reject criminal revision No. 88 of 1955.
2. The above revision application was admitted by the learned Sessions Judge on 23-2-1955 and 17-3-1955 was fixed for hearing. The learned Magistrate had fixed 28-2-1955 for the cross-examination of the prosecution witnesses in his Court in this case. On that date Naththoo appeared and applied for an adjournment of the case on the ground that the revision application against the discharge of Anok Singh and the other accused persons under Section 395. I.P.C. was pending. If that application were allowed a fresh commitment inquiry would have become necessary against all the nine persons and further cross-examination would have become unnecessary.
This application was rejected on the ground that the applicant had not obtained a stay order from the learned Additional Sessions Judge. There is no specific provision in the Code of Criminal Procedure for granting such a stay order. When a revision application is admitted the record is sent for and the subordinate Court complies with the order and sends the record to the superior Court so that proceedings are automatically stayed.
The learned Magistrate should have exercised a proper discretion in the matter and should have granted the adjournment unconditionally. The Magistrate offered to adjourn the case on payment of Rs. 20/- as costs, but as the applicant was unable to pay it he proceeded with the case. The applicant offered himself for cross-examination. His other witnessses were not present and could not be cross-examined. He discarded their evidence and decided the case on the evidence of Naththoo alone, acquitting the accused.
In 'Saghiruddin v. Mt. Munni' 1949 All 428 (AIR V 36) (A), it was held that a duty is cast on the Magistrate to recall the prosecution witnesses for cross-examination as required by Section 256, Cr. P.C. The duty of procuring their attendance cannot be laid on the shoulders of the complainant. The learned Magistrate should therefore have adjourned the case and should have summoned the remaining prosecution witnesses for further cross-examination.
On behalf of Anok Singh respondent it was argued that the Magistrate had ordered on 5-2-55 that the complainant should either bring his witnesses with himself or should get them summoned through Court and that as he did not get them summoned through Court it should be taken that he undertook to bring them with himself. Getting them summoned through Court meant that he should deposit process fee for summoning them.
The Magistrate did not offer to compel the attendance of these witnesses without burdening the complainant with the cost of summoning them. It cannot therefore be said that the complainant undertook voluntarily to bring his witnesses with himself. I accordingly find that the Magistrate acted illegally in deciding the case on the evidence of Naththoo alone.
The learned Additional Sessions Judge who was moved under Section 436, Cr. P.C, against the order of the learned Magistrate declined to make a reference on the ground that the latter had disbelieved the evidence of Naththoo complainant. The learned Magistrate might have come to a different finding if the evidence of Naththoo had been corroborated by the evidence of his other witnesses.
This is a fit case in which the acquittal of Anok Singh should be sat aside in revision and a retrial should be ordered. In the case reported in - 'D. Stephens v. Nosibolla', : 1951CriLJ510 , their Lordships were not satisfied that even a prima facie case has been made out against the accused persons, In the case reoorted in - 'Logendranath Jha v. Polai Lal' : 2SCR676 the entire evidence had been recorded and had been considered and disbelieved by the High Court.
The circumstances of the present case differ from the circumstances of these two cases. The facts of the present case are similar to the facts of the case reported in 1949 All 428 (AIR V36) (A) in which acquittal was set aside in revision. I accordingly allow the revision application No. 119 of 1955 and set aside the acquittal of Anok Singh. I order his retrial under Section 392, I.P.C. As Shri Ram Kumar Shukla Munsiff Magistrate Jatara has already expressed his opinion in the case I transfer it to the Court of Munsif Magistrate Tikamgarh.