C.B.Kekre, J. - (1.)This is petition under Section 417 (3), Criminal Procedure Code, for leave to appeal against the acquittal of the four non-applicants, Lalloo Ram, Kishandas, Kundanlal and Nanhelal, in a prosecution for offence of murder, in which these four non-applicants who were acquitted, were tried jointly with two others, Ramnath and Baijnath, who were convicted of the offence of murder.
(2.)One Nanhelal, who was also known as Nanhelal Dadhiwala, the brother of the petitioner Premdas died as a result of beating administered to him. Two separate and almost simultaneous informations were lodged at the polite station house, Hoshanga-bad, in respect of this incident, one by Ramnath, one of the accused persons, and the other by Mathoo Kotwar. The Station House Officer, Hoshangabad, went to the spot and at the spot one Sunder made a report to him, wherein he implicated the four non-applicants, as well as Ramnath and Baijnath, as having participated in the assault, which resulted in the fatal injuries to the deceased.
(3.)After investigation, the police put up a charge sheet for offence of murder of the deceased against only two, viz. Ramnath and Baijnath. Thereafter, the petitioner Premdas made an application in the Court of the committing magistrate for joining the four non-applicants, against whom no charge sheet had been presented, as accused. The application, after making a grievance of the fact that the charge sheet was against only two out of six as- suilants, went on to state:
"The applicant, who is the brother of the deceased Nanhelal, the alleged victim of the murderous assault under enquiry, desires, therefore, to call the attention of the Court with respect to this omission of the four assailants from the scheme of the case and humbly submits that proceedings at this stage be held up and action be expeditiously taken to order issue of necessary processes for securing the attendance of the said four persons, viz. (1) Lallaram, (2) Kishandas, (3) Kundanlal and (4) Nanhelal, so as to be joined as co-accused, along with Ramnath and Baijnath, who are present at the enquiry. The joining of the said four persons is called for and is necessary in the ends of justice and this Court tan independently do it because it is seized of the case."