GANDHI SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS application is filed to quash the order of remand passed by the learned Additional Sessions Judge, Bathinda, dated Sept. 27, 1997.

(2.) THE accused-petitioners were tried for the offences under Sections 326 and 324 read with Section 34 I.P.C. They were convicted and sentenced to undergo rigorous imprisonment for one year, six months, eight months and four months on different counts. Against their conviction and sentences, the accused- petitioners preferred an appeal to the learned Additional Sessions Judge, Bathinda, who by his order dated 27.9.1997, remanded the case to the trial Court on the question of awarding sentence to Gandhi Singh, 1st petitioner herein, on the ground that he was juvenile at the time of the commission of the offence. After remand the prosecution contended before the learned Trial Magistrate that since the matter was remitted only on the question of awarding sentence to Gandhi Singh, there cannot be any fresh trial, whereas the accused contended that the conviction and sentences of all the three accused have been set aside by the Appellate Court and remanded the matter for a fresh decision. Accordingly, the trial Court fixed the case for arguments. Against the said order, the accused preferred a revision petition in Criminal Revision No. 12 of 1997 to the Additional Sessions Judge, Bathinda. The same was dismissed by the learned Additional Sessions Judge on the ground that the order passed by the Trial Magistrate is only an interlocutory order and no revision petition is maintainable against the same and the learned Additional Sessions Judge, Bathinda directed the accused-petitioners to appear before the trial Court. Hence this petition under Section 482 Cr.P.C.

(3.) A reading of the judgment of the Appellate Court in Criminal Appeal No. 4 of 22-3-1993 clearly shows that the learned Additional Sessions, Bathinda did not consider the appeal on merits. He remitted the case only on the ground that Gandhi Singh, the 1st petitioner herein and accused No. 3 happened to be aged 13/14 years at the time when the charge was framed and should not have been convicted by the trial Magistrate. As such, he was of the opinion that the judgment of the trial Court could not stand due to the said irregularity. He, accordingly, remanded the case to the successor of the trial Court for fresh decision and directed the accused-appellant to appear in the trial Court. A further reading of his judgment clearly shows that both the conviction and sentences imposed on all the three accused were set aside by the Appellate Court. The order of remand, in my view, is clearly wrong. Out of all the three accused only, accused No. 3, who is the 1st petitioner, was juvenile at the time of commission of the offence. Therefore, the learned Additional Sessions Judge ought to have allowed his appeal on the ground that the trial Magistrate had no power to try him in view of the provisions of Juvenile Justice Act, but he should have considered the appeal of Labh Singh and Bhola Singh accused on merits. This course, the learned Additional Sessions Judge had not adopted. Instead he remanded the case in its entirety. When the judgment of the trial Court was set aside and the matter was remanded for fresh decision, it amounts to remanding the case for fresh trial against all the three accused. The judgment of the Appellate Court is clearly erroneous since the appeal filed by the Labh Singh and Bhola Singh, petitioners 2 and 3 herein, has to be decided only on its own merits because the trial Court had the jurisdiction to decide the criminal case against them as they were not juvenile at the time of the commission of the offence. The appellate Court could have only set aside the conviction and sentence imposed by the learned trial Magistrate only in respect of Gandhi Singh, who happened to be a minor at the time of commission of the offence. Therefore, I am of the opinion that the learned Additional Sessions Judge went wrong in remanding the entire matter to the trial Court for fresh decision. In exercise of my inherent jurisdiction under Section 482 Cr.P.C., I set aside the order of the learned Additional Sessions Judge, Bathinda dated 27-9-1997, but the matter does not end there.