1. This is a revision from an order of the Additional Sessions Judge directing a re-trial. The application is made on behalf of Mahbub Hasan Khan and eight other accused persons. A complaint under Section 147 read with Section 395, I.P.O., was made by Abdul Aziz Khan against these accused in the Court of the Tahsildar of Kasganj, a Magistrate of second class powers. The evidence of the parties was produced before the Magistrate. In his order, dated 29th April 1925, the trying Magistrate came to the following conclusion 'In my opinion only Mahbub Hasan Khan is guilty and he voluntarily caused grievous hurt to Ibrahim Ali Khan and caused somewhat serious hurt to Abdul Aziz Khan and deserves more punishment than I have power to inflict.' Under Section 258(1) the Magistrate ought to have recorded an order of acquittal of all the accused persons except Mahbub Hasan Khan. He however made the following order; '1 submit the record under Section 349, Criminal P.C., to the Sub-Divisional Magistrate and direct the accused to present themselves in that Court on the 2nd May.' It is obvious that this order was illegal and in contravention of Section 349(1)(a) so far as the accused other than Mahbub Hasan Khan were concerned. Under that sub-section only the case of those accused who were in the opinion of the Magistrate guilty, could have been forwarded to the Sub-Divisional Magistrate. The Magistrate, however did not record any formal order of acquittal of the other accused and sent all of them to the Sub Divisional Magistrate.
2. When the case went to the Sub-Divisional Magistrate he after a perusal of the evidence came to a slightly different conclusion. In this opinion all the accused were guilty. He accordingly convicted all of them. On appeal to the learned Additional Sessions Judge, the learned Judge has held that inasmuch as the Tahsildar was not authorized to send the case of any of the applicants except Mahbub Hasan Khan to the Sub-Divisional Magistrate the latter has acted with illegality and without jurisdiction in convicting them. As however he thought that the opinion of a more experienced officer like the Sub-Divisional. Magistrate carried more weight he has ordered a trial de novo of all the accused.
3. So far as the case of Mahbub Hasan Khan is concerned the trying Magistrate, being of opinion that be was guilty, had jurisdiction to refer it to the Sub-Divisional Magistrate and the latter acted legally in convicting him and passing at sentence on him. Mahbub Hasan Khan's appeal should therefore have been heard and disposed of on the merits. There seems to be no ground for ordering his trial. If however the learned Additional Sessions Judge on an examination of the records comes to the conclusion that there have been some irregularities which have prejudiced Mahbub Hasan Khan, he would be entitled to order his re trial, otherwise his appeal should be disposed of.
4. As regards the other accused persons. I am of opinion that their further prosecution should be stopped. The learned Tahsildar, although perhaps less experienced than the Sub-Divisional Magistrate, had an opportunity of seeing the witnesses; and marking their demeanour. Having, heard them and seen them he recorded his opinion that the case against these other accused had not Keen established. On that expression of opinion these accused were certainly entitled to an order of acquittal which however the learned Tahsildar committed to pass. The mere fact that a Sub-Divisional Magistrate on a perusal of the evidence on paper has come to a different conclusion seems no good ground for ordering a retrial. The accused have already been put to considerable expenses and worry, and they have in their favour the opinion of the Tahsildar who heard all the evidence for the prosecution that could be brought against them and which would now be produced de novo. Under the circumstances I think the proper order is to quash the order of re-trial passed by the Additional Sessions Judge and to direct that the appeal of Mahbub Hassan Khan be restored to its original number and disposed of according to law. The proceedings against the other accused persons are quashed and they are discharged.