JAGDISH Vs. STATE

JUDGEMENT

(1.) THIS is an application in revision by complainant, Jagdish, against the order of the learned Additional Sessions Judge, Sikar, dated the 30th November, 1959.

(2.) THE facts giving rise to it are that on the 16th July, 1957, the present petitioner, Jagdish, filed a complaint in the court of the Magistrate first class, Neem-ka-Thana against 11 accused for offences under secs. 452, 323, 504. and 147 of the Indian Penal Code. It was stated in the complaint that in village Ajitgarh where he was residing he had a house and near that house he had his Nohra in which a bath-room was constructed. In the Nohra there was a door which led to a public well situated nearby. It was alleged that on the 20th June, 1957, all the 11 accused mentioned in the complaint committed criminal trespass in the said Nohra having made preparations to cause hurt to him. He proceeded to say that after having entered the Nohra, the accused started demolishing the bath-room and when the complainant asked them not to do so, they abused and assaulted him. It was further alleged that the accused had knowingly broken a few things and dismantled certain constructions which caused him a loss amounting to about Rs. 500/ -. It was also mentioned in the complaint that a report of this occurence was made at the police station, but the police officers were showing favour to the accused, that they were delaying the case in not putting up a challan and therefore he had filed the complaint. On receipt of this complaint, the Magistrate examined the complainant, registered the case and directed bailable warrants to be issued against all the accused. THE case was listed for hearing on 4. 9. 57, but since some of the accused were not present on that day, the case was adjourned to 4. 10. 57. On 4. 10. 57, the police also put up a challan before the same Magistrate against the 11 accused. THE police, however, prosecuted the accused for offence under sec. 452 and 440 of the Indian Penal Code. THE Magistrate registered a separate case No. 235 of 1957 on the police report and fixed 29th October, 1957, for hearing. In case No. 179 of 1957, which was registered earlier on the complaint of Jagdish, it was noted by the Magistrate that the police had put up a challan, that copies of relevant papers were supplied to the accused and that this case should therefore be dropped from the register and tagged with the challan case. THEreafter, the Magistrate proceeded with the trial of case No. 235 and eventually convicted and sentenced seven accused for offences under secs. 452 and 427 of the Indian Penal Code. THE remaining 4 accused were acquitted by him. Aggrieved by this judgment dated 15. 5. 59 the seven accused persons, referred above, filed at appeal. At the same time, the State also filed a revision application for enhancement of the sentence which was awarded to the accused. Both these cases were heared together by the learned Additional Sessions Judge, Sikar. One of the arguments, raised before the appellate court was, that a complaint was filed in the court of the Magistrate on 16. 7. 57, that a police challan was also made in respect of the same occurence, that the first case having been instituted otherwise than on a police report, the trial court ought to have followed the procedure laid down in secs. 252 to 258 of the Code of Criminal Procedure, that it should not have followed the procedure laid down in sec. 251a and that the trial was therefore illegal. Reference was made to Gopal Vs. State (1 ). THE learned Judge realised that the case cited before him was distinguishable on facts, but it was further observed by him that the police had not challaned the accused for an offence under sec. 427 of the Indian Penal Code, that the charge for this offence was made on the oasis of the complaint, that the offence under sec. 427 was not cognizable, nor it was a minor offence in relation to the offence under sec. 440 of the Indian Penal Code and there-tore in the opinion of the learned Judge the trial was illegal. He allowed the appeal, set aside the conviction of the accused and ordered a re-trial. In view of the said order, the application for enhancement of the sentence became infructuous therefore it was dismissed. it is against this order that the complainant has filed the present revision application.