KHACHO MAL Vs. EMPEROR

JUDGEMENT

(1.) This is a Reference by the learned Sessions Judge recommending the setting aside of the conviction of the applicants for assault under Section 352, Indian Indian Penal Code, and a consequent order binding them over for a sum of Rs. 200 with one surety in the same amount under Section 108, Criminal P.C.

(2.) On the substantive charge a fine of Rs. 20 only was inflicted. The complainant's case which the trial Court accepted was that owing to a report which the complainant had made against the accused three days earlier they came up behind him with lathis when he was on his bicycle, and said: "See the result of making a report," and ran after him and tried to strike him with their lathis, but being on a bicycle he managed to escape.

(3.) The learned Sessions Judge has written an unnecessarily lengthy order containing some matter quite irrelevant to the present reference, but the grounds of his reference are really five in number: (1) That the provisions of Section 842, Criminal P.C., were not complied with (2) That the petition filed by the complainant Dau Dayal was under Section 107. Criminal P.C., and the Magistrate had no jurisdiction to treat it as a complaint under Section 352. (3) That the Magistrate wrongly took security for good behaviour under Section 106. Criminal P.C., instead of for keeping the peace. (4) That by taking action under Section 106 instead of under Section 107 the Magistrate has deprived the accused of a right of appeal. (5) That the evidence on which the Magistrate acted was unworthy of credit and the accused should not have been convicted on the merits.