R P REDDY Vs. CHAND MOHD

JUDGEMENT

(1.) THIS is a revisional application directed against the order of the learned Sessions Judge, Bhilwara, dated 5th April, 1971 upholding the order of the Mun-sif Magistrate, Bhilwara dated 6th April, 1970.

(2.) THE State launched a prosecution against Chand Mohd. and his son Sultan Mohd. under Section 420, I. P. C. and Section 79 of the Trade and Merchandise Marks Act, 1958 on the allegation that in village Pur, Sultan Mohd. manufactured counterfeit Bidies and labels of Bull Dog No. 7 which is a registered trade mark of M/s. Pyar-chand Kesharimal of Kamptee (Maharashtra) and Chand Mohd. cheated Shankardas by selling spurious Bidies on 15th February, 1966. After the perusal of papers and hearing the arguments the learned Magistrate framed a charge under Section 420, I. P. C. and Section 79 of the Trade and Merchandise Marks Act against Sultan Mohd. and under Section 420, I. P. C. against Chand Mohd. On 7th March, 1967 and on later dates he examined in all seven prosecution witnesses. An application was moved before him on 12th March, 1970 alleging that the police report did not disclose full facts and that accused Chand Mohd. and Sultan Mohd. could not be tried together for the charges levelled against them and it was prayed that the case be dismissed. The learned Magistrate came to the conclusion that the case suffered from the double error of misjoirider of offences as well as misjoinder of persons and dismissed the case adding that it was open to the prosecution, if it was so advised, to present separate charges against both the accused persons. The State preferred a revision before the learned Sessions Judge, Bhilwara who observed: The learned lower court was probably right in disfavouring one and joint trial for both of them on the ground that it constituted a misjoinder of offences as well as misjoinder of persons. The learned Judge then observed: Moreover, the effect of the Magistrate's order is also not very clear as to whether it amounts to a direction for submission of fresh charge-sheet against the accused individually or it amounts to acquittal of both the accused. It may be observed here that in case the effect of the Magistrate's order is the acquittal of the accused, then this revision does not lie and if the order tantamounts to a direction for submission of fresh charge-sheet, it should be complied with. In any case, this revision appears to have no force and is hereby dismissed. Disssatisfied Pyarchand Keshrimal Porwal, Bidi manufacturers have come up in revision.

(3.) LEARNED Counsel for the applicant urged that there was no case of misjoinder of charges or of persons as the entire allegations related to one and the same transaction and Chand Mohd. and Sultan Mohd. could be tried together. Therefore, he urged, the learned Magistrate was in error in dismissing the case and the learned Sessions Judge repeated the mistake. Mr. Gaur, learned Counsel for the accused raised two objections: first, that the order of the learned Magistrate amounted to acquittal and only an appeal lay and not the present revision and his second submission was that it was a case of misjoinder of persons and not of offences. learned Counsel for the State supports the applicant.