1. This is a revision against an order of discharge Of some of the accused in a case pending before the Sub-Divisional Magistrate of Jetaran.
2. Certain dispute arose as to the apportionment of rents of the 'Rabi' crop of Smt. 2004 between the Thakur of Nimbera and Bhoor Singh and, others, and on an application on behalf of the Thakur, and 'Amin' Hardeosingh and a Kanwaria Anwarkhan was appointed by the Executive Hakim of Jetaran by an order dated 30th March 1948. The instruction were that they were to have the grain of 'bera' Khera thrashed out and rents apportioned according to previous practice in the presence of the parties. He also issued notice to the opposite party in this respect.
Anwar Khan Kanwaria made a report to the Hakim on 20th May 1943 that he was on duty at 'Bera' khera and got the grain thrashed out by 19th May 1948 and had put a seal on it and was guarding the grain for the purpose of apportionment, but on the night between the 19th and 20th May, Ram Singh and Takhat Singh, who were sleeping close by and were also keeping watch on the grain along with Bhoor Singh, Ganpat Singh, Mod Singh, Heer Singh and others, came to the spot. Ram Singh put a 'rait' on him and the others tied him with a rope and when he protested, Bhoor Singh threatened to kill him and thereafter the aforesaid persons took, away the entire grain. Ganpat Singh untied him in the morning. The Hakim forwarded the original report to the Sub-Inspector of Police Jetaran with directions to reach on the spot and proceed further according to law.
The Sub-Inspector after investigation put up a challan against six accused, namely, Bhoor Singh, Ganpat Singh, Takhat Singh, Fateh Singh, Ram Singh and Mod Singh for offences under Sections 147, 342 and 424, I.P.C. The learned Sub-Divisional Magistrate, Jetaran; who enquired into the case, after recording the evidence for the prosecution and examining the Thakur of Nimbera as Court-witness, framed a charge against Bhoor Singh for an offence under Section 342, I.P.C., on 8th September 1950. He discharged the other accused. Anwar Khan filed a revision in the Court of Sessions Judge against the discharge of the five accused and for framing a charge under Sections 147, 424 and 342, I.P.C., against all the accused. That revision was rejected.
3. Anwar Khan has filed a revision to this Court, which is Revision No. 76 of 1951. The State has also filed a revision against the order of the Sub-Divisional Magistrate dated 8th September 1950 praying that a charge under Section 424, I.P.C., should be framed against all the accused. This is Revision No. 114 of 1951.
4. It was contended by learned counsel for the accused that the order of discharge of the five accused should not be interfered at this stage, and he has relied upon 'In re: JAYARAMAN', AIR 1949 Mad 66, in which it was observed that the Magistrate was not bound to give reasons for the discharge and it was competent for him to give reasons in the final order of acquittal or conviction of the remaining accused; and therefore in cases where charges have been framed against some of the accused alone, or against all the accused under some sections alone, it would be better if the applications in revision for setting aside the orders of discharge, were made only after the Court finally disposes of the matter. With great respect I am unable to agree with this opinion.
In most cases such a procedure would lead to great inconvenience and delay in disposal of cases and may involve re-trial and great embarrassment to all parties concerned. While under Section 253 Criminal P.C., it is not provided that a Magistrate should give reasons for an order of discharge, butin cases where there is only one accused it is obvious that if the Magistrate discharges the accused, reasons have to be given in support of that order. Similarly, if there are more accused than one, and the Magistrate decides to discharge only some of them, it would be reasonable to expect that some reasons are given in support of that order so that the superior Court may be in a position to find that the Magistrate has exercised his mind in respect of the evidence before him.
As regards the final order of acquittal or conviction, the matter is provided in Section 367 of the Criminal Procedure Code. As the opening words of Section 366 indicate, the judgment refers to a trial which stage arises after a charge has been framed. If the judgment is to be in respect of persons who have also been discharged, Subsection (2) of Section 366 cannot be complied with as the persons who are discharged, no longer remain before the Court. Under Section 367, Criminal P.C., the Court has to give certain particulars in case of conviction or in case of acquittal, but it does not make any reference in respect of persons who have been discharged or in respect of offences as regards which the accused, have already been discharged.
5. Learned counsel for the petitioner Anwar Khan has placed before me the order of the learned. Sessions Judge, and the reasons given by the learned Sessions Judge have been commented upon at some length. The learned Sessions Judge considered that no case under Section 424, I.P.C., had been made out as the accused did not have any dishonest intention in removing the grain. To this learned counsel for the accused has added another reason that it has not been shown by the prosecution that the order of appointment of the 'Amin' and the 'Kanwaria' was in pursuance of any law prevailing in the State. At one stage, it was argued that the order of appointment of the 'Amin' and the 'Kanwaria' was also not, on record. The last point has, however, no force as a certified copy of the order is on the record.
As regards the provision of law, learned counsel for the petitioner Anwar Khan has referred me to Order No. 2502/C. B., dated 9th April 1945 published in the Government Gazette of 14th April 1945, of the former covenanting State of Jodhpur, which authorized the Executive Hakim to appoint an 'Ameen' and a 'Kanwaria' for smooth division of the crops between the Jagirdar and the cultivator. I find that the officer Mr. Abdul Jalil Kazi P.W. 8, who made the appointment of 'Ameen' and 'Kanwaria', was not cross-examined as regards the power under which he issued the order. It appears that he was only questioned by the prosecution with respect to the complaint by Anwar Khan, but nevertheless he could be cross-examined as to his powers to appoint an 'Amin' and 'Kanwaria' as the certified copy of the order was on the record.
'Prima facie' there is a presumption that official orders have been issued in exercise of powers vested in the Government Officer and if the accused wanted to agitate this matter, which he had no doubt a right to do, he should have cross-examined the officer when he came into the witness-box. This is, however, a matter which will be gone into again when the case proceeds further.
6. The alleged removal of grain stealthily at night after disabling the complainant Anwar Khan makes out a prima facie case against the accused under Section 424 of the Penal Code. In their statements, four of the accused admit having taken the grain at night. The charge of disabling Anwar Khan has already been framed against Bhoor Singh under Section 342, I. P. C. Now, whether there weremore than five accused and a charge under Section 147 will be proper, or whether there were less than five and a charge under Section 34, Penal Code, will be proper, or the individuals who committed the offence will have to be charged individually, is a matter for the lower Court to consider. There is in any case no ground for the discharge at this stage.
7. Learned counsel for the accused has urged that taking the evidence at its best, it is not proved that more than four persons have taken part in this incident. Learned counsel for the complainant has drawn attention to the statements of Anwar Khan and Gazi and urged that a 'prima facie' case has been made out against all the accused, since the trial Court does not give any reasons how far these two witnesses could or could not be believed, it will be open to the trial Court to apply its mind on the evidence before it and frame charges against such of the accused as may appear 'prima facie' to have committed the offence. It would be for the Magistrate to come to a conclusion whether in this case a charge under Section 147, Penal Code, if there are more than five accused, or under Section 34. Penal Code if there are less than five, or for offences against individual persons has to be framed.
8. The revision is, therefore, allowed, and theorder of discharge in respect of the five accused,namely, Ganpat Singh, Takhat Singh. Fatch Singh,Ram Singh and Mod Singh is set aside. The discharge of Bhoor Singh in respect of offencesunder Sections 147 and 424, Penal Code, is also setaside. The case will go back to learned Sub-Divisional Magistrate, Jetaran, for further enquiryaccording to law.