AMBIKA SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) This is an application under Sec. 561-A of the Code of Criminal Procedure.

(2.) The relevant facts are that there was a report against two accused, of whom the applicant was one of theft. The police after investigations charge-sheeted the co-accused but submitted a final report against the applicant. The final report was accepted by the Magistrate concerned. Therefore an application was moved on behalf of the informant not to accept the final report and to try the applicant also in the case under Sec. 378 of the Indian Penal Code. That application was also rejected. Thereafter the co-accused namely. Ramji alias Makhnoo, was tried by the Magistrate concerned and was convicted under Sec. 379 of the Indian Penal Code. Makhnoo went up in appeal against his conviction and sentence. The learned Additional Sessions Judge who heard the appeal, set aside the judgement of the learned Magistrate and remanded the case for a fresh trial with the direction that the applicant be also tried.

(3.) To my mind, it has been rightly argued on behalf of the applicant that the learned Sessions Judge has no jurisdiction to pass such an order. Sec. 423 of the Code of Criminal Procedure lays down the powers of an appellate court and also an order that may be passed by the appellate court while disposing of an appeal. It was argued on behalf of the State that clause (d) of Sub-Section (1) of Sec. 423 of the Code of Criminal Procedure which runs as follows:-