ORDER R.K. Batta, J.
1. Heard learned Advocate for the applicants and learned APP for non-applicant/State.
2. The applicants were tried for offence under Sections 324, 452 read with Section 34 IPC and they were convicted under Section 452 read with 34 IPC to suffer S.I. for one month and fine of Rs. 100/-, in default, S.I. eight days and under Section 323 read with 34 IPC to pay fine of Rs. 300/- each, in default, S.I, one month. The applicants challenged the said conviction and sentences before the Sessions Judge and the learned Sessions Judge vide Judgment dated 10-11-1997 allowed the appeal, set aside the sentence and conviction and directed the Magistrate to commit the case for trial to the Court of Session for offence under Section 307 and 450 read with 34 IPC. The applicants were also ordered to be taken into custody and directed to be produced before the J.M.F.C. This order is challenged in this revision.
3. Learned Advocate for the applicants urged before me that the appellate Court, can order retrial by a Court of competent jurisdiction subordinate to such appellate Court and the order passed by the Additional Sessions Judge, cannot, therefore, be sustained, It is also urged that on merits, there is absolutely no case for ordering commitment and that the impugned order is liable to be set aside.
4. Learned APP, on the other hand, relied upon the judgment of Apex Court In State of Uttar Pradesh v. Shankar and pointed out that this ruling is applicable on all fours to the case under consideration.
5. First of ail I shall deal with the objection raised by the learned Advocate for the applicants that the Sessions Court could order retrial only by a Court of competent jurisdiction subordinate to such appellate Court. There is obviously no merit in this argument of the learned advocate for the applicants since the case falls within the scope and ambit of the expression "or committed for trial" Under Section 386(b)(1) Cr.P.C. which expression is not governed by the fact that the retrial can be ordered by a Court of competent jurisdiction subordinate to such appellate Court. The learned Additional Sessions Judge has not actually ordered retrial by a Court subordinate to it, but has ordered the commitment of the case to the Court of Sessions.
6. The Judgment of the Apex Court in State of Uttar Pradesh v. Shankar 1962 (2] CriLJ 261 (supra) applies on all fours to the ease under consideration. In that case, respondent Shankar wanted to have illicit intimacy with Mat. Mithana who was not agreeable to his advances, In order to take his revenge he cut off her nose. The other respondent helped Shankar in felling her down and caught her while Shankar cut off her nose. Both the respondents were tried for offence under Section 326 read with Section 34 of the IPC and the Magistrate found them guilty and sentenced them to R.I. for 18 months each. The respondent filed appeal before the sessions Court. The Sessions Judge set. aside the conviction and directed the ease to be committed to the Court of Session. The respondent filed revision to the High Court against the order of Sessions Judge. The High Court came to the conclusion that the Sessions Judge hearing an appeal against conviction had no power to direct commitment to the Court of Session and all that he could do was that to recommend enhancement of sentence, but it was not worthwhile enhancing" the sentence because the enhancement could only be from 18 months to two years and. therefore, revision was allowed and order was set aside. State came inappeal before the Apex Court by Special leave. While dealing with Section 423(1)(b) of Cr.P.C., 1988, the Apex court held that the said provision gives the power to the appellate Court to dismiss the appeal, to acquit or discharge the accused or order him to be retried or committed for trial. It was, therefore, held that Section does empower the appellate Court to order commitment for trial to the Court of Session. Accordingly, the order of the High Court was set aside and that of the Sessions Court restored.
7. In case before me, the prosecution case is that the appellant No. 1 Narendra Kadu was residing in the neighbourhood of the complainant and the other applicants are his friends. Applicant Narendra Kadu attempted to initiate talk with Sadhna and invited her at his residence. He also used to pass remarks against her. A week prior to 9-2-1985 when Sadhna was proceeding on road to go to tailoring school, the applicant No. 1 Narendra kadu had passed some remarks against her and she had reported the said incident to her husband Ashok, Ashok had scolded the applicant Narendra Kadu for the said act. Because of scolding, the applicants had been to the house of Ashok On 5-2-1985 and rushed towards him to assault. But, Ashok took shelter in the house of one shelke. On 9-2-1985 at about 11.30 a.m. when Ashok, the complainant and Sadhna were in their house, the applicants came to the house of the complainant Ashok. They were carrying weapons like sword, knife and hockey-sticks and they abused and called Ashok outside the house, He did not come out, The applicants broke open the door and entered the house, assaulted Ashok by weapons carried by them, Applicant Narendra Kadu gave blows by sword. Applicant. No.2 Raju assaulted by knife and applicant No. 4 Diwakar assaulted by hockey-stick. When Sadhna came to the rescue of her, she was also assaulted. On the person of Ashok, there were six incised wounds and out of which four were on parietal and occipital region, Sadhna also suffererd incised wound on head and was bleeding profusely and freshly.
8. The learned Sessions Judge, after examining the merits of the evidence, has come to the conclusion that the offences disclosed were prima facie under Section 307 and 450 read with 34 IPC and after placing reliance on State of Uttar Pradesh v. Shankar and Anr. (supra) ordered the commitment of the applicants to the Court of Session.
9. In Sahdeo Ram v. Emperor the accused was initially tried under Section 377 IPC by the Magistrate who sentenced him to 18 months R.I. The accused, filed appeal before the Sessions Judge who was of the opinion that the sentence passed by the Magistrate was quite inadequate and that the case ought to have been committed to the Court of Session. Therefore, exercising powers under Section 423(b) Cr.P.C. he reversed the finding and sentence passed by the learned J.M.F.C. and directed him to commit the case to the Court of Session for trial. The Division Bench of Allahabad High Court held that the appellate Court may under Section 423 either itself commit the accused for trial before the Court of Session or it may direct the Magistrate to do so.
10. In my opinion, the order of learned Additional Sessions Judge is well founded and does not call for any interference whatsoever. The commitment has been ordered in exercise of power under Section 386((b)(1)) and the judgment of the Apex court in State of Uttar Pradesh v. Shankar 1962(2) CrilJ 261 (supra).
11. For the aforesaid reasons, I do not find any merit in this revision and the revision is hereby rejected.