K. Narayan, J.@mdashA first information report was lodged at police station Zamania u/s 436 IPC communicating inter alia that the accused applicants here had caused mischief by fire to the ''Madai'' used for residence by the informant Babban. It also communicated that an ''Ekka'' purchased on loan was also reduced to ashes. The matter was investigated and a charge sheet was submitted by the police u/s 436 IPC pertaining to crime No. 76 of 1989. The accussed appeared on the service of summons etc. and were admitted to bail. On 29-9-1989, the accused made an application possibly conveying that the police had wrongly submitted a charge-sheet u/s 436 IPC, though in fact a case u/s 435 IPC could alone be thought of. They also seem to have desired that the charge be reduced to one u/s 435 IPC and the case be heard accordingly. The Magistrate by his order dated 29-9-1989 recorded observations that only a ''Madai'' was burnt and it was not the residence in which the informant was living and the effects were kept therein or whether it was surrounded by walls and roofs and consequently he accepted the contention of the accused and proceeded to frame a charge u/s 435 IPC. Aggrieved by this order, the informant Babban went in revision before the Sessions Judge, Ghazipur and by an order dated 5-2-1990 the Sessions Judge set aside the above order and directed the court to adopt procedure holding that charge u/s 436 IPC should be framed. Chandra Bhushan Singh and Rain Sagar Singh have come up in this revision before this Court against this order.
2. I have heard the learned Counsel for the applicants and the Counsel for Babban Ram as well as the A.G.A.
3. The grounds taken by the applicants are that non of them was served with the notice of the application of Babban Ram in revision and, therefore, the order was patently bad and against the provisions of natural justice. I will take up this aspect a little later.
4. The other ground was that the finding of the Magistrate that during the investigation it was not found in the statement of the witnesses that ''Madai'' which was burnt was used for dwelling, was a finding of fact and could not be disturbed by the court of revision and hence the order of the Sessions Judge is illegal. It may be true that a finding of fact arrived at by a trial court may not be challenged by way of a revision but for that matter it has to be a finding, a finding based on real evidence and the matter should have been decided by a trial court. The instant case would not obtain with any of the above conditions. The finding recorded by the Magistrate that there was nothing to show that the ''Madai'' was used for dwelling and that evidence did not show as to what were the effects kept in, was patently against the statement of the witnesses interrogated by the police. Either these statements could not be considered in that case, the FIR alone shall be the basis or if they were to be read they would be read as a whole. It was improper to accept a suggestion on behalf of the accused without looting into the case diary itself. The informant Babban Ram had repeatedly stated during interrogation by the investigating officer that his ''Ekka Gari'' and the belongings of Shiv Pujan and others were all reduced to ashes. He had also stated that within this ''Madai'' there was a dera, a colocial for residence. Thus this observation of the Chief Judicial Magistrate was so patently against the material on record that it could not be said to be a finding at all, and to be more precise it would be better to call a mistake of record which is considered to be a fatal for a Judicial Officer and is most undesirable by him.
5. The other aspect would be as to what a human dwelling would be, I cannot add to what has been already stated in this behalf by the Sessions Judge. A ''Madai'' need not be a pucca built house and whatever is used by a person for his residence and keeping of belongings, is his dwelling.
6. In order to examine as to whether it can be said to be a finding of a competent trial court, reference may be made to Sections 208 and 209(a) Code of Criminal Procedure. Section 209 Code of Criminal Procedure lays down directions and procedure in which the Magistrate has to proceed when a case triable by the court of Sessions is instituted on a police report and it directs that when in such case the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the court of Sessions, he shall, as soon as may be, after complying with the provisions of Section 207 Code of Criminal Procedure, commit the case to the court of Sessions. He has no business to look into the merits and demerits of the case. Even the words ''it appears to the Magistrate'', cannot be read to mean that the Magistrate has to look into the merits of the case himself. This is very clear from the language of Section 228 of Code of Criminal Procedure which is a part of the procedure to be followed by the court of Session when a case triable by such court is received and dealt with in that court. u/s 226 Code of Criminal Procedure, the Prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. After that two Sections come into play. If no case is made out from the evidence stated by the prosecutor, an order of discharge u/s 227 Code of Criminal Procedure, is to be recorded. If, after consideration of that evidence, the Sessions Judge considers it and is of opinion, that the accused has committed an offence, there are two options depending upon the nature of the offence. If that offence is not exclusively triable by the court of Sessions, the Sessions Judge may frame a charge against the accused and transfer the case to the court of Chief Judicial Magistrate, and if the offence is exclusively triable by the court of Sessions, he shall frame the charge and proceed with the trial after recording the plea of the accused. Thus, in view of Section 228 Code of Criminal Procedure, it is only the Sessions Judge, that can look into the merits of the case and conclude if there was an offence committed at all and, if so, whether it would be triable by the court of Session, or by the court of Magistrate. Once a charge sheet in support of an offence triable exclusively by the court of Session has been submitted by the police, the Magistrate shall not look into the merits thereof and his only business is to get the provisions of Section 207 Code of Criminal Procedure complied with and commit the case to court of Sessions.
7. Thus, the action of the Magistrate in this case was without Jurisdiction and tainted with approach against the law.
8. In the circumstances, the Sessions Judge was only too lenient in allowing the revision and there is now no occasion for interference. He has recorded a correct direction to undo the mischief of the order of Magistrate.
9. The revision, therefore, has to fail. The ground of the applicants that they were not informed of the hearing by the learned Sessions Judge, is not only meaningless in the circumstances, but also seems to be a patent lie. There is a copy of the notice on the record of Sessions Judge showing that Chandra Bhusan Singh and Ram Sagar Singh were Informed of the date of hearing of the revision i.e. 3-2-1990. On the back of this notice there seems signature of Chandra Bhushan Singh, Gram Pradhan, Tiari. The report of the police was that Chandra Bhushan Singh was personally served and Ram Sagar Singh has informed through Chandra Bhushan Singh. A Pradhan of the village can be easily known to the police constable. In the face of the report, the deposition in para 2 of the affidavit of Ram Sagar "that in revision before the Sessions Judge Criminal Revision No. 463 of 1989, the deponent and his cousin were not served with any notice of hearing of the revision". "Thus they were not afforded an opportunity of hearing before the Sessions Judge. Ghazipur", seems to be patently false to the knowledge and belief of the deponent or could at least not be believed by him to be true. Thus Ram Sagar Singh who has filed the affidavit deposing that he and his cousin has not been served, might have given a false statement or might have made a statement which he possibly did not believe to be true. It is difficult to assume at this stage that he had stated what he believed. In the circumstances, it seems expedient for the eradication of evils of purgery and in the interest of justice that an enquiry should be made, if an offence u/s 191 IPC has been committed and thereafter if need be a complaint should be filed. The deponent should be given an opportunity before a complaint is lodged. Therefore, notice should be issued to him to show cause why a complaint u/s 191 IPC, be not directed to be filed against him.
10. The revision is dismissed. The order of the Sessions Judge, Ghazipur is maintained. The stay order granted earlier is hereby discharged. The charge framed by the Magistrate shall be ignored being without jurisdiction. Notice shall issue to Ram Sagar Singh to show cause why a complaint u/s 191 IPC, be not directed to be lodged against him. A photostat copy of the notice served upon Chandra Bhushan Singh of both sides shall be placed on the record of the Sessions Judge and the original shall be kept on the record of the proceedings u/s 340 Code of Criminal Procedure directed above.
