RAMLAKHAN DHOBI Vs. RACHHEYA KALWAR

JUDGEMENT

(1.) In this case 22 persons were sent up by the police on a charge of rioting in the course of which grievous hurt was caused to two persons and death to a third. The Sub-divisional Magistrate who tried the case charged the persons sent up with offences under Secs.147 and 325 read with Section 149 and also framed an individual charge under Section 435 against one of them, namely Motia Kalwar. At the end of the trial he did not consider that a " clear case " had been made out against any of the accused "under any head" and therefore acquitted them all under Section 258, Criminal P.C. Ramlakhan Dhobi, on whoso first information the case had been investigated and sent up by the police has moved in revision against this order of acquittal, and it has been contended on his behalf that the order is without jurisdiction. The contention seems irresistible.

(2.) According to the prosecution one Ramparichhan Dhobi was killed in the riot by Parmeshwar Kalwar with a bhala blow. The defence version of the occurrence was of course different. But even according to the accused Parmeshwar had struck and killed Bamparichhan with a bhala after the latter had given a garasa blow to one of the accused. Parmeshwar has been absconding, but his fatal bhala blow was as much a part of the riot alleged by the prosecution as the grievous hurt that was caused to Thag Dhobi and Ramlakhan Dhobi and led the learned Magistrate to frame his charge under Section 325 read with Section 149. His absence was no justification for the failure of the learned Magistrate to frame a charge against the accused under Section 302 or at least Section 304 read with Section 149. But such a charge is exclusively triable by the Court of Session, and if the learned Magistrate had framed it, it would not have been open to him to pass any order of acquittal in the case, for the authorities are agreed that a case exclusively triable by a Court of Session cannot be brought within the jurisdiction of a Magistrate by leaving out the more serious charges and confining the trial to minor charges. The learned advocate for the opposite party is not prepared to contend that the law is otherwise, the position being so clear. How this escaped the notice of the Magistrate does not appear.

(3.) It follows therefore that the application in revision must be allowed and the order of acquittal set aside.