The central legal point established is the requirement for evidence to prove theft or possession of stolen property, and the proper order of discharge based on the evidence presented at the time of submitting the challan.

1. - The accused petitioner was challaned for the offences under sections 379, and 211 1PC. The Munsif and Judicial Magistrate, Neemkathana after considering the material available on record discharged him on 23rd Sept., 1989. The complainant filed a revision petition, which was allowed by the Additional Sessions Judge, Neemkathana on 9th August, 1990. This order has been challenged in this revision petition.

2. The facts in brief are that the complainant non- petitioner No.2 lodged a report on 10th July, 1989 at Police Station Patan with the allegations that one buffalo of his had been lost 7 to 8 months ago, when they were searching for it, this buffalo was found in the Nohra of the accused petitioner and it was recognised by the complainant as the one belonging to him. He had purchased this buffalo from Sukha Mali. As the accused petitioner refused to return the buffalo, the FIR was lodged.

3. The accused petitioner claimed the buffalo as his own saying that he has purchased it from Darsu Cattle Fair and he even produced the receipt of transaction before the Investigating Officer.

4. The learned Magistrate considered the circumstances and was of the opinion that there was no evidence to show that the buffalo had been stolen by the accused or that he had prepared a false document about purchase of this buffalo, for this reason the accused was discharged.

5. The learned Additional Sessions Judge reconsidered the position and observed that the receipt produced by the accused petitioner did not disclose the description of the buffalo and that the seller's name in the receipt was fictitious. Considering the circumstances, the order of discharge was set aside and at the same time on the request of the complainant the question of possession of the buffalo was considered and it was ordered that the same be handed over to the complainant.

6. It is an admitted position that the buffalo was recovered from the premises of the accused petitioner. The complainant and the accused petitioner both live in the same village and are not stranger to each other. The FIR was lodged on 10th July, 1989 and according to this report buffalo had been lost or stolen 7 or 8 months ago. This comes to December or November, 1988. Surprisingly in November, 1988 the accused had purchased the buffalo from Darsu Cattle Fair. It is also an admitted position that the complainant did not lodge any report about the theft or disappearance of the buffalo. There is nothing on record to show as to when the accused brought this buffalo to this village.

7. There is no evidence at all about the theft of the buffalo. As far as offence under section 411 1PC is concerned, a person in possession of stolen property can be presumed to be the thief or the person who has received the goods knowing them to be stolen, if he is found in possession soon after the theft and is not in a position to account for his possession. In this case the accused was not found in possession of the buffalo soon after the theft or disappearance of the buffalo and besides this he has accounted for his possession by saying that he purchased the buffalo from Darsu Cattle Fair. The Investigating Officer questioned the Fair authorities about the receipt and found it to be genuine. It was on account of the facts mentioned above that the learned Magistrate found no case for proceeding against the accused petitioner. The description of the buffalo was not mentioned in the FIR also.

8. The learned counsel for the complainant has contended that charge should be framed even if there is prima facie case against the accused, as the other evidence can be produced during the trial of the case.

9. As far as the scope of revision under section 397 Cr.P.C. is concerned, the High Court or the Sessions Court has to satisfy itself about the correctness, legality or propriety of any finding. The scope of revision is not similar to that of an appeal, where in all the matters can be reopened. There was no illegality or im