MANJI JAIRAM BHATE Vs. KALEKHAN

JUDGEMENT

(1.) 1. This is a reference by the learned Sessions Judge, Akola. The facts are briefly these: On a complaint by one Manji Bhate, eleven persons were tried by Mr. J.E. Solomon, a Subordinate Judge exercising the powers of a 1st Class Magistrate at Akola for offences Under Sections 147 and 379, I.P.C. The trial resulted in the conviction of accused 1, 3, 6, 7, 9 and 10 of an offence Under Section 147 and in the acquittal of the remaining five accused. The convicted persons preferred an appeal which was heard and disposed of by Mr. M.A. Amraotkar, Additional Sessions Judge, Akola, who set aside the convictions on the ground that inasmuch as the evidence recorded at the trial disclosed an offence of dacoits, an offence admittedly not triable by Mr. Solomon, the whole trial was without jurisdiction and void. Accordingly the learned Additional Sessions Judge directed a retrial of the appellants before him in the Court of a Magistrate of the 1st Class who also exercised the powers Under Section 30, Criminal P.C.

(2.) THE fresh trial accordingly proceeded in the Court of Mr. M. A Subhankhan and an application was put in by the complainant on 3rd October 1928 asking for processes to be issued also against the five persons who were acquitted at the original trial. The learned Magistrate, however, rejected the application on the ground that since there was no appeal preferred against their acquittal, these acquitted persons could not be retried in spite of the fact that the original trial was held to have been void. This order was passed on 3rd October 1928.

(3.) AGAINST this order the complainant moved the Sessions Judge, Akola, in revision, and the learned Judge has made the present reference to this Court Under Section 438, Civil P.C. with a recommendation that the Magistrate should be directed to entertain the complaint. This reference has been registered in this Court as a criminal revision and the complainant is described as an applicant and the six persons who figure as accused in the petition, of the complainant, dated 18th October 1928 as non-applicants.