MADHUBEN Vs. THAKARDA LAKHAJI SENDHAJI

JUDGEMENT

(1.) THE appellant in the case was original complainant in Criminal Case No. 1097 of 1967 before the learned trial Magistrate. The accusation made by the complainant against the respondents Nos. 1 to 3 was that they trespassed into the field and committed the offence punishable Under Section 447 of the Indian Penal Code. The learned Magistrate convicted the respondents Nos. 1 to 3 and sentenced them to a term of imprisonment and fine. They preferred an appeal to the Sessions Court at Mehsana and it was numbered as Criminal Appeal No. 72 of 1968. The appeal was heard by the learned Additional Sessions Judge in that Court who held that the offence was not brought home to respondents Nos. 1 to 3 and therefore, acquitted each of them. This appeal is filed against the aforesaid order of acquittal by the original complainant.

(2.) MR. Karlekar who appears for the appellant-complainant raised two contentions before us. The first was that the learned Additional Sessions Judge, who disposed of this appeal, had no jurisdiction to hear it; while the second contention of Mr. Karlekar was that on merits of the case the decision of the learned Appellate Judge is not correct. The respondents Nos. 1 to 3 have been served, but none of them has appeared in this Court. Respondent No 4 is the State of Gujarat and Mr. G. M. Vidyarthi the learned Assistant Government Pleader appears for the State. The contention about jurisdiction arises under the following circumstances.

(3.) MR. K. M. Satwani was the Sessions Judge of Mehsana Division and he proceeded on leave for 23 days with effect from 14th June, 1968 to 6th July, 1968. The Government issued an order directing Shri D. K. Shah, Assistant Judge and Additional Sessions Judge, Mehsana "to hold charge of the post of District and Sessions Judge, Mehsana in addition to his own duties during the absence of Shri K. M. Satwani. " On 21-6-1968 Mr. D. K. Shah made an order transferring certain criminal appeals including Appeal No. 72 of 1968 to the file of himself as Additional Sessions Judge, Mehsana for disposal Under Section 193 (2) of the Code of Criminal Procedure. Mr. D. K. Shah signed this order as "additional Sessions Judge, Mehsana I/c. District". He forwarded a copy of the said order to himself for information.