SUKHLAL Vs. EMPEROR

JUDGEMENT

(1.) This is an application for the revision of an order of the Sessions Judge of Bareilly parsed in the following circumstances. Four persons were charged before a first class Magistrate with offences under Section 328, Indian Penal Code. Two of them were convicted under that section and sentenced to terms of imprisonment and the other two were acquitted because the Magistrate considered that the evidence against them fell short of absolute proof. The complainant in the case applied to the Sessions Judge for revision of the order of acquittal, and the two persons who had been convicted also appealed against their convictions and sentences, and in the order with which I am now concerned the Sessions Judge allowed the revision and ordered that the two present applicants Sukh Lal and Bhola should be committed to Sessions on a charge under Section 308, Indian Indian Penal Code. The Sessions Judge remarked: All the four accused persons are alleged to have assaulted Mindhai at one and the same time and three of them were armed with spears. Although it may not be possible to infer that they intended to kill Mindhai, the nature of the injuries and the manner of the assault do indeed show that they intended to cause such bodily injuries on him as were likely to cause death and in the circumstances the proper charge to frame against them was one under Section 308, Indian Penal Code.

(2.) He has discussed the evidence to a certain extent and he has also remarked that two of the accused persons (i. e. the present applicants) have been acquitted without sufficient reasons. But the main cause of his order is that the Magistrate should not have disposed of the case himself but should have committed it to Sessions.

(3.) It has been argued by Mr. Aziz that the order of the Sessions Judge is an illegal one. Under Clause (4) of Section 403 of the Criminal Procedure Code, a person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged, and it is freely admitted by Mr. Aziz that the mere fact that the two applicants have been acquitted of offences under Secs.323 and 326, Indian Penal Code, will not save them from being tried on the same evidence for an offence under