ONKAR Vs. KAPOORCHAND

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge, Tonk, recommending that conviction and sentence of the accused applicant Onkar and Bajrang under Section 426, Indian Penal Code, may be set aside and the case may be remanded to the trial court for fresh trial in accordance with law.

(2.) THE facts leading to the reference may be briefly stated as follows:-On 21st April, 1962 Kapoorchand-opposite party No. 1 presented a complaint in the court of First Class Magistrate, Tonk, against the petitioners Onkar and Bajranga accusing them for an offence under Section 427, Indian Penal Code. The allegations in the complaint are that the opposite party is the manager of a 'dharmshala' constructed by his father Seth Chhaganlal and that there was a lime kiln in the dharmshala. On 17th April, 1962 the accused petitioners destroyed the kiln and caused a damage to the extent of Rs. 200 On 1st May, 1962 the Magistrate recorded the statement of the complainant and further examined two witnesses Ramkaran and Chatra and ordered that the complaint be taken on file for an offence under Section 426, Indian Penal Code. Processes were issued to the accused-petitioners for answering a charge under Section 426, Indian Penal Code. An offence under Section 426, Indian Penal Code, was triable as a summons case. The Magistrate acting under Section 242, Criminal P. C. stated to the accused particulars of the offence of which they were accused and asked them whether they had any cause to show why they should not be convicted. The accused pleaded not guilty. The Magistrate held a trial in accordance with the procedure prescribed for a summons case, examined the prosecution evidence, recorded the statements of the accused and examined the witnesses produced by the accused and eventually convicted them of an offence under Section 426 Indian Penal Code and sentenced each one of the petitioners to a fine of Rs. 40, and in default, one month's simple imprisonment. The petitioners submitted a revision in the court of Additional Sessions Judge, Tonk. Before the Additional Sessions Judge the accused petitioners contended that the complainant had filed a complaint under Section 427, Indian Penal Code, and that the complainant's sworn statement and the statements of witnesses examined under Section 202, Criminal P. C. also supported the complaint and did not indicate the commission of a mionr offence under Section 426, Indian Penal Code and, consequently, the Magistrate acted without jurisdiction in registering a case under Section 426, Indian Penal Code, and holding a trial in accordance with the procedure prescribed for summons case. The additional Sessions Judge accepted the plea of the accused-petitioners and has made the present reference.

(3.) MR. Bhandari appeared for the accused-petitioners and supported the reference. Mr. Sobhag Mal Jain for the complainant and Mr. A. R. Mehta for the State have opposed the reference.