LILADHAR Vs. STATE

JUDGEMENT

(1.) THE Applicant in this revision application was convicted Under Sections 420 and 468 IPC by the ADM (J), Hamirpur and was sentenced to one year's R.I. under each count. The sentences were ordered to run concurrently. On appeal, the Civil and Sessions Judge set aside the conviction and sentence of the Applicant and remanded the case for retrial in the light of the observations made by him and then to dispose of the case on merits.

(2.) ON a perusal of the judgment of the Sessions Judge I find that he had ordered retrial on two grounds. The first was that Smt. Lalita Bai who was a very important witness had not been examined and was exempted as an incompetent witness because she was a lunatic. In that connection, the learned Sessions Judge observed that the Magistrate should have obtained a certificate of the Civil Surgeon about her mental equilibrium. The second ground was that after the Applicant had been examined Under Section 342 Code of Criminal Procedure the Magistrate examined one Lila Ram, a Handwriting Expert as a court witness, but did not put any questions to the Applicant with regard to the expert evidence Under Section 342 Code of Criminal Procedure. He, therefore, directed the Magistrate to examine Smt. Lalita Bai if she was sane and to re -examine the Applicant under the provisions of Section 342 Code of Criminal Procedure and also give the Applicant an opportunity to produce expert evidence in rebuttal, if he so liked. He taken directed that the learned Magistrate should then dispose of the case on merits. That order is not in accordance with the provisions of Section 428 Code of Criminal Procedure. Under that section, the appellate Court can either take further evidence itself and decide the case or direct it to betaken by a Magistrate who is to send that evidence to it and then it may decide the case on merits. Thus the only power given Under Section 428 Code of Criminal Procedure to the learned Sessions Judge was that he could order the Magistrate to take further evidence according to his directions and send it back to him for disposal of the case. He could not direct the Magistrate to decide the case himself on merits after taking further evidence. The proper course, therefore, for the learned Sessions Judge was to have himself taken further evidence, if necessary and if permitted by law and to dispose of the case himself.