- (1.) J. S. Sidhu, J. This will dispose of ten appeals, the first two Nos. 979 of 1977 and 982 of 1977 by the State against the acquittal of Raj Kumar and Ram Dhani respectively and the remaining eight Nos. 2490, 2491, 2492, 2493, 2494, 2495, 2496 and 2497 of 1976 by Sukhdeo, Parmeshwar, Mun-shiraja, Ram Lakhan, Majid Hussain, Jamadar Singh, Ganga Singh and Amirullah Khan respectively who and a host of others were tried by Special Addl. District Judge (PAC) Mirzapur and out of whom, the said eight appellants were convicted under Section 7 (c) of the U. P. PAC Act, 1948 and sentenced to rigorous imprisonment for two years each while the rest were acquitted by the said Judge vide his judgment dated 13-10-1976.
(2.) I have heard the sides and have examined the records. Now the records show that the accused respondents in the first two appeals, appel lants in the remaining eight appeals and a host of other were committed by an Executive Magistrate vide his commitment order, dated 21-10-1974 to stand their trial in the court of session. Thereafter the Addl. Sessions Judge to whom the case was entrusted for disposal by the Sessions Judge and who was curiously called Special Addl. District Judge (PAC) Mirzapur tried and decided the case as aforenoticed. It is well settled and brooks of no contradiction that correctly the proceedings that led to the passing of the commitment order by the Executive Magistrate, dated 21-10- 1974 which were pending before the Executive Magistrate, at the time of coming into force of the new Criminal Procedure Code (Crpc) should have been by virtue of the proviso to Section 484 (2) (a), Crpc, dealt with under the new Crpc and the case, if at all the same was to be committed to the court of session, should have been so committed to the court of session by a Judicial Magistrate and not by an Executive Magistrate. The being so, the com mitment of the instant case to the court of session by the Executive Magis trate vide his order dated 21-10-1974 passed after coming into force of the new Crpc was without jurisdiction with the inevitable consequence that as the commitment was without jurisdiction the trial of the accused by the court of session to be precise the Court of the Special Addl. District Judge (PAC) Mirzapur was without jurisdiction as well. The argument by Sri D. S. Mishra learned counsel for the eight appellants who have been con victed and sentenced that the commitment by the Executive Magistrate was without jurisdiction and bad in law and as a result the trial by the Special Addl. District Judge (PAC) Mirzapur was as well without jurisdiction and bad in law, therefore, prevail is that as the offences for commission of which the accused were committed to the court of session wore all triable by a Magistrate the commitment of the case to the court of session was bad in law on that score as well. The records bear out that the offence for commis sion of which the accused were committed to the court of session in the instant case were all triable by a Magistrate and none of the offences was exclusively triable by a court of session. So the commitment of the case to the court of session was indeed bad in law on this count as well. The up shot is that appeal Nos. 979 of 1977 and 982 of 1977 by the State are without merit and are dismissed while appeal Nos. 2490, 2491, 2492, 2493, 2494, 2495, 2496 and 2497 of 1976 by Sukhdeo, Parmesh-war, Munshiraja, Ram Lakhan, Majid Hussain, Jamadar Singh, Ganga Singh and Amirullah Khan respectively are accepted and the convictions and sentences of the eight appellants namely, Sukhdeo, Parmeshwar, Munshiraja, Ram Lakhan, Majid Hussain, Jamadar Singh, Ganga Singh and Amirullah Khan respectively are hereby set aside. It will, however, be open to the State, if it so wants, to reinitiate proceedings for prosecution of the accused in the case that has given rise to these appeals before the com petent, court in accordance with law. This court, however, hopes and trusts that the State before a decision in the matter would consider whether it should reinitiate proceedings keeping in view that the accused for no fault of their have had to bear the brunt of having this case pending against them and hanging over their heads like a proverbial sword for the past over two decades with all the hardships and rigorous that implies. Decided accordingly. .;