Sitaram Sao vs Sahdeva Gope and Others

K. Sahai, J.—This application is directed against an order of Mr. Indradeva Sinha, Judicial Magistrate, 1st Class, of Barh, whereby he has acquitted the opposite party of a charge u/s 342 of the Penal Code.

It is unnecessary to state all the facts of the case which have been given by the learned Magistrate in his judgment. The allegations made by complainant Sitaram Sao (P. W. 1) made out a case for an offence under Sec. 342 as well as an offence of arson punishable u/s 436 of the Penal Code. After investigation, the police submitted charge-sheet only in respect of the offence u/s 342. When the case was transferred W trial to Mr. Indradeva Sinha, the petitioner prayed to him to charge the opposite party for an offence u/s 436 also and to hold a commitment enquiry under Chapter XVIII of the Code of Criminal Procedure because that offence is exclusively triable by the Court of Session. The learned Magistrate, however, decided that he would frame a charge against the opposite party only for an offence u/s 342 of the Penal Code and would try them under the procedure for trial of a warrant case. The petitioner again made a similar prayer after the examination of the prosecution witnesses was over; but, by an order dated the 5th December, 1959, the learned Magistrate said:

"It had already been ordered to Proceed as a warrant trial case on 6-3-59 after hearing the parties and hence it is not possible to review this order till the case is closed. If it is found that a case u/s 436 I. P. C. was made out, necessary orders would be passed at the time of final orders." .

The petitioner did not come up to higher Courts against that order. As the Magistrate came to the conclusion, while passing the final order, that the prosecution case was false and concocted, no question of his directing a commitment enquiry to be held arose.

Mr. Jugal Kishore Prasad, who has appeared on behalf of the petitioner, has argued that the Magistrate should have held a commitment enquiry, in view of the allegation that an offence of arson had also been committed, and that he erred in holding the trial himself. The Magistrate passed orders, in the course of the trial, that he was trying the case under the procedure for trial of a warrant case, and that he would order a commitment enquiry to be held only if it seemed to be necessary at the time of final order. If the petitioner was aggrieved by that Order, he should have moved higher Courts at that stage. The situation now is that the charge was only for an offence u/s 342, which the learned Magistrate was quite competent to try. He has tried that charge and has acquitted the opposite party of that charge. It seems to me that he has not committed any error of law, nor has he acted beyond his jurisdiction.

The only other point which Mr. Jugal Kishore Prasad has urged is that, now that the opposite party have been acquitted of the charge u/s 342, their trial for an offence u/s 436 would be barred u/s 403 of the Code of Criminal Procedure. It may be that the Magistrate would refuse to summon the opposite party for an offence u/s 436," in view of the order of acquittal passed by the learned trying Magistrate in this case; but I do not think that Section 403 would be a bar to the trial of the opposite party for an offence u/s 436.

A charge for an offence u/s 486 could not be framed against the opposite Party under the provisions of Section 236 nor Could they be convicted for that offence under the provisions of Section 237 of the Code of Criminal Procedure, when the charge which was framed against them was u/s 342 of the Penal Code. They may have been charged u/s 436 at this trial under the provisions of Sub-section (1) of Section 235. Section 403(1) and (2) make it clear that a person acquitted of one charge may be afterwards tried for any distinct offence for which a separate charge might have been framed u/s 235(1). Indeed, Mr. A. K. Dutta, who has appeared on behalf of the opposite party, has also frankly admitted that the opposite party''s acquittal at this trial would not be a bar to their trial for an offence u/s 436, although he has naturally stated that, in view of the findings in the present case, the opposite party ought not to be tried for an offence u/s 436. That would be, according to him, a mere harassment of the opposite party.

As no ground for interference has been made out, this application is dismissed.