HASAN RAZA Vs. EMPEROR

JUDGEMENT

(1.) THE order of the Additional Sessions Judge cannot be supported. THE facts are these: THE applicants are alleged to have attacked the house of Lachman, to have assaulted several persons there and to have stolen grain. On the facts this was a case of dacoity triable by a Court of Session. THE Police erroneously sent it us as a case under Secs.452 and 147 of the Indian Penal Code. THE Magistrate convicted on those charges. THE Sessions Judge rightly found the case to be a case of dacoity but took a course which cannot he supported. He changed the charges into a charge under session 395 of the Indian Penal Code and made certain alterations in the sentences. His proper course was to have directed the appellants to be committed for a trial on a charge under Section 395 of the Indian Indian Penal Code. This must be done now. I set aside the convictions and sentences and direct that the appellants shall remain in custody and be committed to the Court of Sessions Judge of Gorakhpur (the Additional Sessions Judge having already expressed his opinion on the merits cannot now hear the case) and be tried on a charge under Section 395 of the Indian Penal Code to the effect that they on the 11 of December 1921, being more than five in number, did commit dacoity at the house of Lachman in the village of Darandiah in the Basti District. In the event of any of the appellants being found guilty, it will be open to the Sessions Judge to consider, in passing sentence, the imprisonment which they have already undergone.