Prafulla C. Pant, J.
1. This revision is directed against the judgment and order dated 31.08.1999, passed by the Sessions Judge, Chamoli, in Criminal Appeal No. 03 of 1996, whereby said court has dismissed the appeal affirming the conviction recorded by the trial court (Chief Judicial Magistrate, Chamoli), in Criminal Case No. 496 of 1992, State v. Dharmanand and Ors. relating to offences punishable under Section 452/34 and 427/34 of I.P.C., Police Station Ukhimath, District Chamoli (now District Rudraprayag).
2. Heard learned Counsel for the parties and perused the lower court record.
3. Brief facts of the case are that complainant P.W. 1 Bhyuraj Singh, moved an application under Section 156(3) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), before the District Magistrate, Chamoli, on 26.02.1992, on which the District Magistrate directed the In-charge of police station Ukhimath to register and investigate the case. It is alleged in the first information report by the complainant P.W. 1 Bhyuraj Singh that he is resident of Village Badasu. He was constructing his new house in Village Phata in place of his old demolished house. When he had gone out on 25.02.1992, accused namely Dharmanand, Sulochana (wife of Dharmanand) and Subodh (son of Dharmanand) trespassed in his house, and destroyed the construction and took away the tins of the house. Under orders of the District Magistrate, passed under Section 156(3) of Cr.P.C., the police registered Crime No. 03 of 1992, relating to offences punishable under Section 452, 427, 504 and 506 of I.P.C. After investigation, the police submitted charge sheet (Ext. A-6) against the three revisionists, namely Dharmanand, his wife Sulochana and his son Subodh.
4. The Chief Judicial Magistrate, after giving necessary copies to the accused, framed charge of offences punishable under Section 452/34, 427/34, 504/34 and 506/34 of I.P.C., on 29.04.1993, to which the three accused pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Bhuraj Singh (complainant); P.W. 2 Rajendra Singh (relative of the complainant); P.W. 3 Inder Singh (tenant of the complainant); P.W. 4 Constable Balbir Singh and P.W. 5 Sub Inspector Janeshwar Singh. The evidence was put to the accused under Section 313 of Cr.P.C. in reply to which they alleged the same to be false. On behalf of the defence D.W. 1 Shivraj Singh; D.W. 2 Bachan Singh. D.W. 3 Sundar Singh and D.W. 4 Aditya Ram were examined. The trial court after hearing the parties, found all the three accused guilty of charge of offences punishable under Section 452/34 and 427/34 of I.P.C. The accused were acquitted of the charge of rest of the offences punishable under Section 504/34 and 506/34 of I.P.C. After hearing on sentence, each of the convicts were released under the Probation of Offenders Act, on executing bond for keeping good conduct for two years. Aggrieved by said judgment and order dated 04.07.1996, passed by the Chief Judicial Magistrate, Chamoli, the convicts preferred Criminal Appeal No. 03 of 1996, before the Sessions Judge, Chamoli. Said court vide impugned judgment and order dated 31.08.1999, dismissed the appeal affirming the conviction of the revisionists. Hence, this revision was filed by the convicts before the Allahabad High court on 28.09.1999, where it was admitted on the next day i.e. 29.09.1999. This revision is received by transfer to this Court under Section 35 of the U.P. Reorganization Act, 2000 (Central Act No. 29 of 2000), for its disposal.
5. Learned Counsel for the revisionists argued that the District Magistrate is not empowered to pass any order under Section 156(3) of Cr.P.C., as such, entire proceedings based on that order are vitiated. In this connection, it is further argued that the conviction recorded and affirmed by the courts below is liable to be set aside.
6. Sub-section (3) of Section 156 of Code of Criminal Procedure, 1973, provides that any Magistrate empowered under Section 190 to take cognizance of an offence, may order such an investigation as provided under Sub-section (1) of said Section. Sub-section (1) of Section 156 of Cr.P.C., provides that any officer in charge of police station may, with or without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction for the local area within the limits of such station would have power to inquire into and try under the provisions of Chapter XIII. The question before this Court is whether, expression 'Any Magistrate' includes the District Magistrate, or not? To interpret said expression, this Court feels it just and proper to refer Section 3 and Section 190 of Cr.P.C. Section 190 of Cr.P.C. provides that any Magistrate of first class, and any Magistrate of the second class empowered, on receiving complaint constituting an offence, or a police report, or an information received otherwise may take cognizance of such offence. Clause (a) of Sub-section (1) of Section 3 of Cr.P.C., provides as under:
3. Construction of references. - (1) In this Code,
(a) any reference, without any qualifying words, to a Magistrate shall be construed, unless the context otherwise requires,
(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;
(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;
Analogous provision relating to the Magistrate of second class and Magistrate of first class are given in Clause (b) and Clause (c) of Sub-Section (1) of Section 3 of Cr.P.C. Reading of Section 3 makes it abundantly clear that since the word 'Magistrate' referred in Section 190 and Section 156 of Cr.P.C., refer to Judicial Magistrate, as such, District Magistrate was not competent to pass any order under Section 156(3) of Cr.P.C., under which the application was expressly moved, by the complainant. The District Magistrate could have passed such an order exercising the powers of the Judicial Magistrate if conferred on him. But, in the present case, it is nobody's case that the District Magistrate exercised any power of Judicial Magistrate conferred on him. On being asked by the District Magistrate, the police could have on its own motion registered the written report as first information report, but the District Magistrate had no power to exercise the powers under Section 156(3) of Cr.P.C. That being so, the entire proceedings of this case are based on an order without jurisdiction. Learned Sessions Judge has committed grave error of law in rejecting the contention of learned Counsel for the revisionists/appellants on this point.
7. Apart from this, on the facts also the courts below have erred in law in rejecting the testimony of the witnesses examined on behalf of the defence in which they have proved that they were the rightful owners in possession of the property in question. Whether, they were actually owners or not is a different issue, but for the purposes of constituting an offence punishable under Section 452 of I.P.C., and one punishable under Section 427 of I.P.C., the mensrea required appears to be missing. That being so, this Court is of the view that the revisionists were entitled to be acquitted from the charge of offences punishable under Section 452/34
8. For the reasons as discussed above, this revision is allowed. The impugned judgment and order dated 31.08.1999, passed by the Sessions Judge, Chamoli, in Criminal Appeal No. 03 of 1996; and judgment and order dated 04.07.1996, passed by the Chief Judicial Magistrate, Chamoli, in Criminal Case No. 496 of 1992, are hereby set aside. The revisionists, namely Dharmanand, Sulochana and Subodh are acquitted of the charge of offences punishable under Section 452/34 and 427/34 of I.P.C. Lower court record be sent back.