STATE Vs. SALU

JUDGEMENT

(1.) ALTHOUGH this petition was filed as an appeal from the order of the Sessions judge, Balotra, dated the 25th of February, 1961, the learned Assistant government Advocate prayed that as the interim order was not appealable, this petition may be treated as one for revision.

(2.) MST. Sukhi filed a complaint in the Court of the Sub-Divisional Magistrate, banner, on the 21st of August, 1959, against Salu and Deda, with the allegations that, on the previous day, namely, the 20th of August 1959, both the accused went to the bank of Kareli 'nadi' where Mst. Sukhi had gone to fetch water, and that Deda caught hold of both her hands and Salu bit her on her face, and that when she cried, Hazari, Kesha and others reached there and they saved her. The magistrate issued process against the accused persons after examining the complainant under Section 200, Cri. P. C. Mst. Sukhi also filed a first information report at Police Station, Barmer, on the same day, and the police registered a case under Sections 354 and 324, I. P. C. against the accused persons. While the complaint case was still pending and no evidence bad been recorded, the police presented a challan against both the accused on the 8th of October, 1959. The Magistrate thereupon passed an order that as a challan had been received, the Prosecuting Sub-Inspector should undertake to prosecute the case. He then framed charges against both the accused and tried them in accordance with the procedure laid down by Section 251a, Cri. P. C. and finally convicted Salu under Sections 354 and 323, I. P. C. and Deda under Section 354 read with section 114, I. P. C. and sentenced them to various terms of imprisonment. On appeal, the learned Sessions Judge, Balotra, held that the accused were prejudiced inasmuch as the trial was not held according to the provisions of sections 252 to 259, Cri. P. C. He therefore remanded the case for retrial after setting aside the convictions of the accused persons.

(3.) IN this revision petition, it is urged on behalf of the State that the learned sessions Judge was in error in thinking that the Magistrate could not take cognizance of the case on a police challan after he had already initiated the proceedings against the accused persons by issue of process on complaint. It is argued that even though the Magistrate had taken cognizance of the case on a private complaint, he was not debarred from taking cognizance on a police challan subsequently and trying the case on the challan as provided by Section 251a, Cri. P. C. allowing the complaint proceedings to remain dormant. It is further contended that the proceedings of the trial were in accordance with the law and did not suffer from any illegality.