- (1.) KHEM Karan, J. Heard Shri Rajat Krishan appearing for the revisionist Pat-meshwari and three others and Sri Brijendra Singh, the learned counsel for the State.
(2.) THE revisionist Patmeshwari, Bish-ma Nand, Ajodhya and Jeotish Prakash were convicted by the learned and Judicial Magistrate, Gonda under Sections 342, 427 and 323 of I. P. C. and sentenced to various terms on each count vide judgment and order dated 19-5-1983. Against this conviction and sentence the convicts preferred an appeal (Criminal Appeal No. 80/83), the learned Sessions Judge, Gonda allowed and directed that the case be com mitted to the Court of Session. It is against this judgment and order dated 3-8-1983 of the learned Sessions Judge that the revisionists have come to this Court in this revision. In brief, the case was that on 16th of March, 1981 at about 12 a. m. in the noon while these revisionists were tethering cat tle in front of the door of Smt. Janak Dulari. She objected to it and thereupon these revisionist dragged her to inside their house and beaten her bitterly, as a result of which she sustained a few injuries on her person. The matter was reported to the police on 5-4-1981, on the basis of which a case was registered and inves tigated. After investigation, the police submitted a charge-sheet against all these revisionists for their trial under Sections 342, 427 and 323 of I. P. C. The accused-revisionists denied the charges. The prosecution examined Smt. Janak Dulari, Kanhaiya Lal, Vishnu Dayal and others. The learned Magistrate came to the con clusion that all the four revisionists were guilty under Sections 342, 427 and 323 of I. P. C. He imposed a sentence of fine of Rs. 200 under Section 342 of I. P. C, a fine of Rs. 100 under Section 427 of I. P. C. and a sen tence of imprisonment of six months under Section 223 of I. P. C. Aggrieved- by this conviction and sentence, revisionists filed criminal appeal before the learned Sessions Judge. It appears that instead of deciding the matter on merits whether the conviction was good or bad, the learned Sessions Judge proceeded on a different line. He took a view that the offence com mitted by the accused by causing injuries to Smt. Janak Dulari, fell within the ambit of Section 307 of I. P. C. and since offence under Section 307 of I. P. C. was exclusively triable by the Court of Sessions, so the learned Magistrate had no jurisdiction to try this case and according to him there was no trial at all for lack of jurisdiction. He set aside the conviction and sentence and directed the learned Magistrate to commit the case to the Court of Sessions. The learned counsel for the revisionists has submitted that the view taken by the learned Sessions Judge in appeal in coming to the conclusion that the case was exclusively triable by the Court of Sessions and in ordering for com mitting the case to the Court of Sessions was totally unjustified and unwarranted. In the facts and circumstances of the case and was also contrary to the settled prin ciples enunciated by the Apex Court in Ukha Kalhe v. State of Maharashtra, AIR 1963 SC 1531. According to him all the injuries noted by doctor and the proof proved to have been sustained by Smt. Janak Dulari w. e. f. (sic) was reported to be grievous in nature and so there was no basis for the learned Sessions Judge to take the view that the injuries were such which could result in death of the victim or the act of accused, was such which fall within the ambit of Section 307 of I. P. C.
(3.) IT is a fact that the occurrence is said to have taken place at a time when the revisionists were trying to tethering their cattle on a land allegedly belonging to Smt. Janak Dulari. No lethal weapons were used for causing the injuries. None of the injuries was reported to be grievous or others dangerous. In the fact and cir cumstances, there was no room for taking the view that the act of the accused fell with in the ambit of Section 307 of I. P. C. and therefore, was not a case triable by the Magistrate. I agree with the learned coun sel for the revisionists on the point that re-trial should not have been ordered in this case. The learned Sessions Judge should have disposed of the appeal on merits, instead of taking such a view and instead of directing the learned Magistrate to commit the case to the Court of Sessions. His judgment does not appear to be legally sound and deserves to be set aside. The learned counsel for the parties do agree that in case the judgment and order of the learned Sessions Judge are set aside. Their ap propriate counsel will be to remanded of the appeal for re-hearing and decision afresh on merits. Since the learned Sessions Judge has not entered into the question whether the finding of guilt recorded by the trial Court is correct or incorrect and since he has allowed the appeal on a technical ground, so the ap propriate counsel seems to be ask him to decide the appeal on merits, after affording the opportunities to the partiesor their counsels. In the result the revision is allowed and the judgment and order dated 3-8-1983 delivered by the Sessions Judge in Criminal Appeal No. 80/83 is set aside and the matter is being remanded back to the learned Sessions Judge to register the ap peal at its original number and decide it on merits, after affording the opportunity of hearing for both the parties. The ap plicants are directed to appear before the learned Sessions Judge, Gonda for receiv ing further order, in appeal, on 24-8-1990.;