GOVERNMENT Vs. MALLAPPA SHIVAPPA JADAR AND

JUDGEMENT

(1.) This reference Under Section 438 of the Criminal Procedure Code has been made by the learned Sessions Judge, Bijapur, under the following circumstances:

(2.) The two respondents were the accused before the Judicial Magistrate First Class, Bagewadi, in Criminal Case No. 36/57 on the file of that Magistrate. The case against them was to the effect that they both trespassed into the land of P.W. I Rachappa and had caused hurt to him. Both the accused pleaded not guilty; the learned Magistrate, after trial, found that both the accused persons were guilty of offences Under Sections 447 and 323 of the Indian Penal Code; he convicted them for both the offences and sentenced them to pay a fine of Rs. 25/- in respect of each offence and in default to undergo Rigorous Imprisonment for a period of ten days. Agamst the said conviction and sentence, both the accused persons preterred revision to the Sessions Judge, Bijapur; that was In Criminal Revision Application No. 10/00 on the he of the learned Sessions Judge. The learned Sessions Judge, on a consideration of the evidence which had been adduced before the learned Magistrate. took the view that both the petitioners before him should not have been convicted for an offence Under Section 447 of the Indian Penal Code; he also came, to the conclusion that so far as the first accused is concerned, he ought not to have been convicted for an offence Under Section 323 of the Indian Penal Code. In consequence of taking such a view, the learned Sessions Judge has made the present referende recommending that the conviction of both the accused in respect of die offence Under Section 447 of the Indian Penal Code be set aside and so far as the first accused is concerned the conviction for an offence Under Section 323 of the Indian Penal Code also be set aside.

(3.) Sri Naik has appeared for the two accused persons who were the petitioners before the learned Sessions Judge. Sri B. S. Keshava Iyengar the learned High Court Government Pleader has appeared for the State and he has contended that the reference made by the learned Sessions Judge is liable to be rejected.