TITU TANTI AND ORS. Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) The petitioners were initially tried by a first class Munsif -Magistrate, who by his judgment dated the 10th March, 1967, convicted petitioner Madhu Tanti (petitioner no. 2) under Ss. 324 and 148, Indian Penal Code, and sentenced him to undergo rigorous imprisonment for one year under each count. He convicted the rest of the petitioners under Ss. 323 and 147, Indian Penal Code, and sentenced them to rigorous imprisonment for six months under each count. All the sentences were ordered to run concurrently. On appeal, the 4th Additional Sessions Judge, Bhagalpur, by his Judgment dated the 20th September, 1967, set aside the convictions and sentences imposed on the petitioners and sent the case back to the learned Magistrate in the following terms.

(2.) The only point urged before us on behalf of the petitioners is that the order of remand, dated the 20th September, 1967, passed by the 4th Additional Sessions Judge, Bhagalpur, was illegal and, therefore, all subsequent proceeding taken thereunder must be knocked down. In support of his argument learned counsel has relied upon a number of decisions of this Court and of the Supreme Court. They are: (1) Gajanand Thakur V. Emperor (A.I.R. 1916 Pat 219); (2) Bhaso Singh V. Emperor [A.I.R. 1918 Pat 582(2)]; (3) Sri Krishna Prasad Sinha V. Emperor ( : A.I.R. 1936 Pat 438); (4) Md. Bashir Ahmad V. The State ( : A.I.R. 1961 Pat 252) and (5) Ukha Kolhe V. The State of Maharashtra ( : A.I.R. 1963 SC 1531). In the case of (1) Gajanand Thakur (A.I.R. 1916 Pat 219) it was held by this Court that the Sessions Judge's order setting aside the convictions and sentences, ordering a retrial of the accused, and directing the Magistrate to take additional evidence was wholly illegal. This view was followed by another Bench of this Court in the case of (2) Bhaso Singh [A.I.R. 1918 Pat 582(2)]. The case of Bhaso Singh is on all fours with the facts of the present case. In that case also at the appellate stage the Sessions Judge set aside the conviction and sentence and ordered retrial, but at the same time directed that the evidence already on record should be treated as evidence in the case. It was held that the order was contrary to the provisions of Ss. 423 and 428, Code of Criminal Procedure, and, therefore, illegal. In view of the fact, however, that the petitioners had been in jail for a considerable time, no retrial was ordered. Their conviction and sentence were set aside and they were ordered to be released forthwith. The case of (1) Gajanand Thakur (A.I.R. 1916 Pat 219 supra) was Followed by Rowland, J. in (3) Sri Krishna Prasad Sinha V. Emperor ( : A.I.R. 1936 Pat 438). Similar view was expressed by another Bench of this Court in (4) Md. Bashir Ahmad V. The State (A.I.R. 1951 Pat 252). It was held:

(3.) The aforesaid discussions make it clear that the order of remand passed by the learned 4th Additional Sessions Judge (Shri S.N. Basu) remitting the case back to the Munsif Magistrate for partial trial was wholly illegal. By his order, the learned 4th Additional Sessions Judge set aside the order of conviction passed by the Munsif -Magistrate (Shri Lakshmi Charan) and, as the order of remand was illegal, all subsequent proceedings taken against the petitioners must be knocked down as such. Now, only two courses are open to us; either to send back the case for a retrial on fresh evidence to be adduced by the parties or to pass a suitable order in the circumstances of the case to do justice between them. On the facts of the present case, the proceedings were started about six years back and the petitioners have been sufficiently harassed as they had to appear in various courts at various stages. The offence charged against them is not of a very serious type. It has also been brought to our notice that the petitioners have remained in jail for some time. In consideration of all these facts, I think, we ought not to allow further proceedings to go on; and relying on a Bench decision of this Court (2) [Bhaso Singh V. Emperor - -A.I.R. 1918 Pat 582(2), supra], where, on similar facts, the accused were released and their conviction was set aside, we allow this application and set aside the conviction of the petitioners. They are discharged from their bail -bonds.