Desai, J. - (1.) THE applicants have come up in revision against their conviction under Section 323, I.P.C. and Section 24 of the Cattle Trespass Act They along with others were prosecuted under Sections 147 and 325, I.P.C. before a Judicial Magistrate, who framed charges under those sections against them It was proved that one of them had caused a griseous hurt but there was no evidence as to which of them had caused it. The learned Magistrate found that there was no certainty that anybody else besides the applicants took part in the crime, that consequently no offence under Section 147, I.P.C. was made out, that Section 34, I.P.C. also did not apply and that in the absence of evidence as to which of the applicants if any caused the grievous hurt, the could not be punished under any section other than Section 323, I.P.C. So he convicted the applicants only under Section 323, I.P.C. Their conviction has been maintained by the Sessions Judge on appeal -
(2.) IT is contended that the applicants' conviction by the learned Magistrate under Section 323, I.P.C. was without jurisdiction. Reliance is placed on Section 56 of the Panchayat Raj Act under which if at any stage of the proceedings in a criminal case pending before a Magistrate it appears that the case is trial by a Panchayati Adalat, the Magistrate must at once transfer it to the Panchayati Adalat. On behalf of the State it is contended that the case is really not one trial by a Panchayati Adalat, being one of Section 325, I.P.C. and that the learned Magistrate could not transfer the case to a Panchayati Adalat under Section 56 The argument is that it is proved in the case that an offence of Section 325, I.P.C. was committed and that consequently the case was one trial by a Panchayati Adalat. In my opinion, a -" soon as the learned Magistrate found, for whatever reason, that the applicants were guilty only under Section 323, I.P.C. the case became one not trial by a Panchayati Adalat. An offence of Section 325 I.P.C. might have been committed but in the absence of any proof that it had been committed by any of the applicants and if Section 3f, did not apply, they could be convicted only under Section 323, I. P. C.. So the case was one trial by a Panchayati Adalat, notwithstanding the fact that somebody had committed the offence under Section 325, I.P.C. So long as that somebody was not involved in the case, the case could not be said to be not trial by a Panchayati Adalat. About thirteen men were prosecuted, ten of whom were acquitted by the learned Magistrate, on the ground of benefit of the doubt. This means that they were not proved to have taken part in the commission of the crime but it does not mean that they did not take part in the commission of the crime. It would be quite consistent with their acquittal on the ground of benefit of the doubt that some of them might have taken part in the commission and that the grievous hurt might have been caused by any of them. So it is by no means certain that the grievous hurt was caused by any of the three applicants before me. In other words, there is no certainty that even grievous hurt was caused in the case. It would be immaterial if a grievous hurt was caused by some person not concerned the case. The distinction that was sought to be made on behalf of the State between the facts of this case and those of others to which Section 56 has been applied by this Court does not appeal to me and I am of the view that the learned Magistrate was bound by Section 56 of the Panchayat Raj Act to transfer the case to a Panchayati Adalat as soon as he found that the only offence of which the applicants could be convicted was that of Section 323 I.P.C. I hold that the conviction of the applicants under Section 323 I.P.C. and Section 24 of the Cattle Trespass Act was without jurisdiction.
(3.) I allow this application set aside the conviction and sentences of the applicants and direct the learned Magistrate to transfer the case to the Panchayati Adalat having jurisdiction for trial under Section 323, I.P.C and 24 of the Cattle Trespass Act The applicants' bail bonds are discharged and if the fine has been realised by them, it shall be refunded to them.;