The High Court has jurisdiction to order a retrial in a case where the Magistrate has omitted to frame a charge for an offence which was prima facie established by the evidence for the prosecution and which would have ousted the Court of trial of its own jurisdiction.

Judgement

HIDAYATULLAH, J. : By an order pronounced on May 7, 1965, we ordered the dismissal of this appeal but reserved our reasons which we now proceed to give.

2. The five appellants were tried on a complaint by the respondent Janardan Prasad before the Honorary Magistrate, First Class, Jehanabad for offence 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 appeal against their acquittal. The High Court set aside the acquittal and remanded the case to 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 Court of Session. The appellants now appeal by special leave against the judgment and order of the High Court. The facts of the prosecution case may now be stated briefly.

3. Janardhan Prasad and his brother Jangal Prasad were separate, having prior to the present occurrence, partitioned their lands by metes and bounds. Plot Nos. 1810 and 1811 in village Kalpa Kalan fell to the share of Jangal and plot No. 1699 in the same village fell to the share of Janardan. Jangal Prasad s plots lie close to the dalan of Matukdhari and his brothers Rameshwar Singh and Dhanukdhari Singh (the first three appellants) and they coveted them. Janardhan alleged that they forged a sale deed in respect of half the area of those two plots and presented the documents for registration. Janardhan was aggrieved but on the intercession of Deoki Lal and Chhedi Lal (appellants 4 and 5) the dispute was compromised and it was agreed that Janardhan would execute a sale deed for plot No. 1699 and half of another plot No. 1491 while Matukdhari and his brother Dhanukdhari Singh agreed to sell in return 0.10 acre in one of their plots (No. 1797) to him. The complainant executed two sale deeds in respect of the two said plots and Dhankdhari Singh executed a sale deed in respect of plot No. 1797 as it was in his name. The latter sale deed was taken in favour of Janardhan s son. All documents were scribed by Deokilal with the help of Chhedi Lal and were presented for registration. The receipts obtained from the Registration Office were left with Deokilal till the result of the first registration case (which was fixed for February 8, 1960) was known. When Janardhan asked for the receipts he was put off. He found later that the two documents had already been withdrawn by forging his signature. Matukdhari had withdrawn the deed executed by Janardhan and Dhankadhari the sale deed executed by himself. The complainant was assured by Deokilal and Chhedi Lal that the deed executed in favour of his son would be returned by Rameshwar Singh with whom it was said to be lying, but Rameshwar Singh refused to do so. The complaint was, therefore, filed.

4. The Sub-Divisional Officer, Jehanabad took cognizance under Ss. 468, 406 and 420. Indian Penal Code and sent the case to the Hony. Magistrate for disposal. The Hony. Magistrate drew up charges against all the accused under S. 420, Indian Penal Code. In addition, Chhedilal and Deokilal were charged under S. 468, Indian Penal Code and S. 406, Indian Penal Code respectively. Matukdhari was charged under Ss. 465/471, Indian Penal Code. These charges could be tried by the Honorary Magistrate. No charge under S. 467, Indian Penal Code was framed against any of the appellants. If it had been framed the case had to be committed to the Court of Session. On March 29, 1962 the complainant, by a written application, asked that action under Chapter XVIII of the Code be taken but the Magistrate declined to commit the accused. Another application dated June 28, 1962, for the same purpose was also rejected. The learned Magistrate held that the evidence of entrustment of the receipts from the office of the Registrar was not satisfactory and