BASHIR AHMAD Vs. STATE

JUDGEMENT

(1.) It is an unfortunate case where the case has to go back because of an illegal order passed by the Additional Sessions judge when it was before him in Criminal Appeal 120 of 1958. For the disposal of this application it is not necessary to state the facts of the case in any detail. The petitioner was put upon his trial before Mr. M. Prasad, Magistrate, 1st class, along with eleven others to answer the charges under Section 323 of the Penal Code and Section 121 of the Railways Act. The other eleven persons were acquitted by the said learned Magistrate, but the petitioner was convicted by his order elated 11th April, 1958, and was awarded a consolidated sentence ot rigorous imprisonment for three months under both the sections. The petitioner went up in appeal before the learned Additional Sessions Judge in Criminal Appeal 120 of 1958, and he by his order dated 21st May, 1958, set aside his Conviction and sentence on the ground that it was not quite proper and legal to pass a consolidated sentence of imprisonment under both the sections, especially when no sentence of imprisonment could be awarded under Section 121 of the Railways Act. In that view of the matter, the order which was passed by the learned Additional Sessions-Judge was:

(2.) After this order of remand, the case came to be heard by Mr. B. P. Srivastava, another Judicial Magistrate holding 1st class powers. It was heard on the same evidence which had been recorded by Mr. M. Prasad, and a fresh order dated 16th September, 1958, was passed by him convicting the petitioner under both those sections, but the learned Magistrate, Mr. B. P. Srivastava, awarded to the petitioner a sentence of two months' rigorous imprisonment under Section 323 of the Penal Code and to pay a fine of Rs. 30, in default, further simple imprisonment for a week under Section 121 of the Railways Act. The petitioner again went up in appeal in Criminal Appeal 305 of 1958. This appeal also came to be heard by the same presiding officer of the same Court, namely, Mr. S. M. Karim, presiding over the Court of the 1st Additional Sessions Judge of Gaya. He has upheld the conviction and sentence of the petitioner by his judgment and order dated 18th December, 1958. The petitioner has, therefore, come up in revision to this Court.

(3.) As the point taken on behalf of the petitioner was an important one, the case was directed to foe placed before a Division Bench for hearing at the time of admission. The contention raised on behalf of the petitioner is that the learned Additional Sessions Judge passed an illegal order in Criminal Appeal 120 of 1958, inasmuch as, he had no power to pass an order of remand under Section 423 of the Code of Criminal Procedure of the kind he did. On certain grounds he had the power to order a retrial, but he had no power to direct the trying Magistrate to write out a fresh judgment only because of the illegality committed by him in awarding a consolidated sentence of imprisonment for the conviction of the petitioner under the two sections of the two statutes mentioned above. Learned counsel further submitted that as a result of the illegal order passed by him, Mr. B. P. Srivastava did not get any jurisdiction to pass any fresh order of conviction against the petitioner, and, therefore, the present order passed in Criminal Appeal 305 of 1958 is also without jurisdiction. In the first instance, a prayer was made before us that the conviction should be set aside on these grounds, or, in the alternative, we were asked to direct the lower appellate Court to rehear Criminal Appeal 120 of 1958 directed against the order of conviction passed by Mr. M. Prasad and to dispose it of according to law.