LexMATUKDHARI SINGH AND OTHERS versus JANARDAN PRASAD
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• • • A B c D E F MATUKDHARI SINGH AND OTHERS v. JANARDAN PRASAD July 20, 1965 255 [A. K. SARKAR, M. HIDAYATULLAH AND V. RAMASWAMI, JJ.] Code of Criminal Procedure, ss. 417, 423-Maglstrate acquitting accused of charges in respect of which he had jurisdiction-Ignoring evidence of charges in respect of which he had no jurisdiction-High Court setting aside acquittal and ordering retrial-Legality of High Court's order. The appellants were tried on a complaint by the respondent before an Honorary Magistrate for offences under ss. 420, 468, 406 and 465/ 471 Indian Penal Code and acquitted. The Magistrate rejected the complainant's request to frame a charge under s. 467 Indian Penal Code, and commmit the accused to the Court of Sessions. The complainant appealed to the High Court against the acquittal. The High Court held that the evidence prima facie disclosed an offence under s. 467 and even though the com- plaint did not mention that section it was the duty of the Magistrate to commit the case to sessions. It accordingly set aside the acquittal, and ordered a retrial. The appellants came to this Court by special leave. It was contended on behalf of the ap~ellants that the trial before the Magistrate, in so far as it went, was with jurisdiction and it could not be 'let aside merely because the High Court thought that a charge under s. 467 might be framed, and that such a proceeding is not contemplated bys. 423(1) of the Code of Criminal Procedure. HEID : (i) If the Magistrate had applied his mind to the relevant evidence he would haYe seen that the main offence was under s. 467 read with •· 471 and the other offences were subsidiary. It was thus not proper for him to choose for trial only such offences over which he had juris- diction and to ignore the other offence over which he had none. His duty clearly was to frame a charge under s. 467 and to commit the appellants to stand their trial before the Court of Sessions. [259 G] (ii) It is wrong to contend that the High Court had no jurisdiction in the matter because the trial before the Honorary Magistrate (in so far as it went) was with jurisdiction. If it were so there would be no remedy whenever a Magistrate dropped serious charges ousting him of his juris- diction and tried only those within his jurisdiction. [260 B-C] G Dr. Sanmukh Singh Teja Singh Yogi v. Emperor, A.I.R. 1945 Sind 125. H approved. However hesitant the High Conn may be to set aside an order of acquittal and to order retrial, it has jurisdiction under the code to do so if the justice of the case clearly demands it and a case of omi~ion from tbe charge of a serious offence prima facie disclosed by the evidence, is one of those circumstances in which the power can properly be exercised particularly when the charge for the offence it framed would have ousted the jurisdiction of the trial court. [260 D-EJ Abina.rh Chandra Bos~ v. Bimal K~ishna Sen, AI.R. 1963 S.C. 316, Ukha Kolhe v. State of Maharashtra. A.I.R. 1963 S.C. 1531, Barhanuko· 256 SUPREME COURT REPORTS [ 1966] l S.C.R. Rai and o:hers v. King-Emi'''"'· A.LR. 1926 Pat. 36, Ba/gobind ThaJ.11, A and others v. King-Emp.ro,, A.LR. 1926 Pat. 393 and K.F..V. Razya Bhag- Wllllla, 4 Born. L.R. 267, referred to. CRIMINAL APPEL LA J"F. JURJSDICTION : Criminal Appeal No. 26 of 1965. Appeal by special leave from the judgment and order dated 8 August 10, 1964 of the Patna High Court in Criminal Appeal No. 66 of 1962. R. K. Garg, S. C. Aganvala and D. P. Singh. for the appel- lants. D. Goburdhun, for the respondent. The Judgment of the Court was delivered by Uidayatullab, J. By an order pronounced on May 7, 1965, we ordered the dismiss:.il of this appeal but reserved our reasons which we now proceed to give. c D The five appellants were tried on a complaint by the respon- dent Janardan Prasad before the Honorary Magistrate, First Class, Jehanabad for offences under ss. 420, 468, 406, 465/471, Indian Penal Code. They were acquitted on August 31, 1962. The complainant obtained special leave of the High Court at Patna under s. 417 ( 3) of the Code of Criminal Procedure and filed an E appeal against their acquittal. The High Court set aside the acquittal and remanded the case to the District Magistrate of Gaya with a direction that the case be inquired into under Chapter XVIII of the Code from the stage of taking evidence under s. 208, with a view to their committal to the Co
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