Sheoparsan Singh and Others vs Emperor

Sen, J.—This is. an application against an order of the Sessions Judge of Saran remanding the case of the accused under the following circumstances:

According to the prosecution case a riot took place on 20th March 1926 at Babhuara in which the petitioners formed members of an unlawful assembly. It appears that 12 persons had been previously tried and convicted for the offence committed and their convictions were upheld by the High Court. The present case is supplementary to the above case, and the only point for determination was whether the four petitioners before this Court were also members of that unlawful assembly and whether they gave the orders for, and instigated, the assault in question.

The trial Court found that they were guilty of the charge brought against them. There were, however, two serious flaws in the order of the trying Magistrate. Instead of finding them guilty of rioting at Babhuara on 20th March 1926 the learned Magistrate found them guilty of rioting on 28th March 1926.

The learned Sessions Judge held that the accused had been seriously prejudiced by this gross mistake which was due to a mistake in the drawing up of the charge. Moreover, no attention appears to have been paid by the Magistrate to an important exhibit (Ex. D) on behalf of the petitioners which showed that petitioner 1 was examined on 20th March 1926 as a witness in the Court of the District Judge in a case for revocation of probate. Whether, after giving such evidence, it was possible or likely for him to return to Babhuara and to take part in the riot required careful enquiry. On this, as well as on other grounds, the learned Sessions Judge has remanded the case u/s 4 23, Criminal P.C., for trial from the stage it became irregular, namely, from the drawing up of the charge.

Learned Counsel for the petitioners contends that having regard to what had happened the proper course for the learned Sessions Judge was not to order a remand but to acquit the petitioners. In any event, he asks this Court to set aside the order of the learned Sessions Judge and acquit them.

I cannot accede to this contention. I think it is a fair order, inasmuch as the proceedings will now be taken up from after the drawing up of the charge.

Thus no opportunity will be afforded to the prosecution to improve their case. Only the accused will be able fully to cross-examine the prosecution witnesses. It is also to be expected that the Court will now be in a position to consider the question as to whether petitioner 1 could have been present at Babhuara to take part in an unlawful assembly. The application is dismissed.