KESRU Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) SARVSHRI Kesaru and others have come up in revision Under Section 435 read with Sections 439 and 561-A of the Cri. P. C. 1898 against the order of the Sessions Judge, Simla, whereby he set aside the order of discharge passed by the Chiei Judicial Magistrate, Kalpa, on 30-41975.

(2.) THE police had challaned Kesaru and others Under Section 379/449 IPC, but the Chief Judicial Magistrate on the basis of the statements Under Section 161 Cripc recorded by the police, and on the ground that there was delay of 17 days in lodging the F. I. R. found that no case had been made out against the accused persons and that the charge against the accused was groundless. Further he held,, "the case has been hanging fire since 1972, there was no progress for want of P. P. inasmuch as (sic) any representation on behalf of the State, with the result that the accused had already suffered much financially and mentally which was much more punishment than what could be awared in law even if the case was proved against them. Further that the potatoes, which was the subject matter of the theft, was such a commodity which it was difficult to be identified. " Further he observed,

(3.) SHRI H. K. Paul appearing on behalf of the State raised a preliminary objection that this revision petition was not maintainable, inasmuch as the order setting aside the order of discharge and remanding the case is not a final order and a revision is barred and he has referred me to Dilip Kumar Ghosh v. State Durga Prasad Khosla v. State of Uttar Pradesh S. Kuppuswami Rao v. King, (AIR 1949 F. C. 1): (49 Cri LJ 625) and Tarapore and Co. Madras v. M/s V/o, Tractors Export. Moscow In the former two cases while disposing of the applications under Article 134 (1) it was held that the order disposing of the application in revision and setting aside the order of the Sessions Judge and sending back the case to him for being heard on merits was not an order which could be said to be final.