Ramlakhan Dhobi vs Rachheya Kalwar and Others

Dhavle, J.—In this case 22 persons were sent up by the police on a charge of rioting in the course of which grievous hurt was caused to two persons and death to a third. The Sub-divisional Magistrate who tried the case charged the persons sent up with offences under Sections 147 and 325 read with Section 149 and also framed an individual charge u/s 435 against one of them, namely Motia Kalwar. At the end of the trial he did not consider that a " clear case " had been made out against any of the accused "under any head" and therefore acquitted them all u/s 258, Criminal P.C. Ramlakhan Dhobi, on whoso first information the case had been investigated and sent up by the police has moved in revision against this order of acquittal, and it has been contended on his behalf that the order is without jurisdiction. The contention seems irresistible.

According to the prosecution one Ramparichhan Dhobi was killed in the riot by Parmeshwar Kalwar with a bhala blow. The defence version of the occurrence was of course different. But even according to the accused Parmeshwar had struck and killed Bamparichhan with a bhala after the latter had given a garasa blow to one of the accused. Parmeshwar has been absconding, but his fatal bhala blow was as much a part of the riot alleged by the prosecution as the grievous hurt that was caused to Thag Dhobi and Ramlakhan Dhobi and led the learned Magistrate to frame his charge u/s 325 read with Section 149. His absence was no justification for the failure of the learned Magistrate to frame a charge against the accused u/s 302 or at least Section 304 read with Section 149. But such a charge is exclusively triable by the Court of Session, and if the learned Magistrate had framed it, it would not have been open to him to pass any order of acquittal in the case, for the authorities are agreed that a case exclusively triable by a Court of Session cannot be brought within the jurisdiction of a Magistrate by leaving out the more serious charges and confining the trial to minor charges. The learned advocate for the opposite party is not prepared to contend that the law is otherwise, the position being so clear. How this escaped the notice of the Magistrate does not appear.

It follows therefore that the application in revision must be allowed and the order of acquittal set aside.

Section 439(2) lays down that no order shall be made u/s 439 to the prejudice of the accused unless he has had an opportunity of being heard either personally or by a pleader in his own defence; and this raises another question on the present application made as it is ostensibly against 21 persons as the opposite party, while the number of persons dealt with by the Magistrate was 22. The names of the opposite party as given in the application for revision have been compared by the Bar with those given in the charges framed by the Magistrate; and the learned advocates have agreed that three of the 22 names before the Magistrate, namely Malikchand, Birja and Sheogovind, do not clearly appear in the revisional application. The acquittal of Malikchand, Birja and Sheogovind cannot therefore be touched. As regards the other 19 persons before the Magistrate he must now be asked to take up the case again, consider the question whether a charge u/s 302 read with Section 149 ought not to be framed against these 19 persons, and proceed with the case in accordance with the law.