YAD RAM Vs. EMPEROR

JUDGEMENT

(1.) This riot case really presents very little difficulty on either the law or the facts. A riot took place at Jalalpur. As usual both sides were sent up, the Police leaving it to the Magistrate to convict both sides if he wished. In Trial No. 21 the accused, the complainants in the present case, were all acquitted. In Trial No. 23 against 17 persons including the present appellant the Magistrate convicted the other sixteen under Section 325 read with Section 147 of the Indian Penal Code, and acquitted Yad Ram. We accept for the purpose of the present appeal, that the Police sent the accused up on charges under Secs.147 and 302, it being the fact established beyond doubt that one Mohan who was one of the present complainants party, was killed in the course of the riot.

(2.) The sixteen men appealed to the Court of Session and their conviction was set aside and their commitment ordered on charges including one under Section 302. That case was finally disposed of by the upholding of the conviction of a number of men by this Court including the sentences of several of them to transportation for life. At the conclusion of that case in the Sessions Court the Assessors asked the Judge to record their opinion that in fact the present appellant before us, Yad Ram, ought to have been committed to the Court of Session too, as he was equally guilty with the other accused. As a result of this the District Magistrate ordered the committal of Yad Ram to the Court of Session on a charge of murder. As a result of that commitment Yad Ram has been convicted. The learned Sessions Judge has found the accused guilty under Section 302 of the Indian Penal Code and finding his guilt to be equal with that of Bed Ram, Lekha, Ganga and Dan Sahai, the four men who received the sentence of transportation for life in the previous case, sentenced Yad Ram also to transportation for life, and declined to make any recommendation for the reduction of the sentence. He was further convicted under Section 147 of the Indian Penal Code and sentenced to two years rigorous imprisonment, which was to run con-. currently.

(3.) In this Court a legal objection is taken that the accused having been acquitted by a Magistrate on a charge under Section 302, he could not be tried again on a charge under that section until and unless the previous acquittal under Section 302 had been set aside. It is clear that there is no force whatever in this objection. In the proceedings before the Magistrate in which Yad Ram was acquitted there was no "trial" of Yad Ram on a charge under Section 302, nor was he "acquitted" under Section 302. Nor, if the Magistrate had endeavoured to try him and had endeavoured to pass any order of acquittal or conviction under Section 302, would his procedure have been within his jurisdiction. This is such an elementary proposition of law that it is impossible to conceive of any Magistrate regarding himself as "trying" or attempting to "try" a charge of murder. We have seen a certified copy of the Magistrate's order and it is perfectly clear that he did what, holding the view that he did of the case (though that view was quite wrong), he was fully entitled to do, i.e., refrained from framing any charge under Section 302, and proceeded to try the accused before him on charges under Secs.325 and 147. We have said that he was legally entitled to abstain from framing a charge under Section 302. We do not for a moment suggest that the facts justified any such self-restraint. We think that no authority is required for the interpretation which we put upon the law, which is, in our opinion, quite obvious. But if authority be needed it can be looked for in Sheo Narain Singh V/s. Radha Mohan 53 Ind. Cas. 618 : 42 A. 128 : 20 Cr.L.J. 778 : 17 A.L.J. 1095 : 1 U.P.L.R. (A.) 193 and Krishna Reddi V/s. Subbamma 24 M. 156 : 2 Weir. 544. There can be no doubt, therefore, in our opinion, that the trial on a charge under Section 302 was in no way contrary to any provision of law.