A. K. Srivastava, J.

( 1 ) THIS petition has been filed under Section 482 of the Code of Criminal Procedure for setting aside order dated 11. 11. 97 passed by Mr. D. S. Paweriya, Additional Sessions Judge, Delhi, in Crl. A. No. 3/97 and order dated 9. 11. 97 passed by Mr. Gurdeep Singh Saini. Metropolitan Magistrate, Delhi. Copies of the aforesaid two orders are on the record at pages 4 to 8 and pages 9 to 10 respectively.

( 2 ) THE facts of the case are that the four petitioners herein were convicted and sentenced under Sections 365, 452, 380 and 448, Indian Penal Code in a case arising out of FIR 872/78 by orders dated 7. 7. 90 and 26. 7. 89 respectively. An appeal against the conviction and sentence being Crl. A. 3/97 was filed by the convicts. That appeal was taken up for hearing by Mr. D. S. Paweriya ASJ. It appears that during the course of hearing of the appeal, the learned Additional Sessions Judge was told that no fine was imposed under Sections 365, 380 and 452, Indian Penal Code though these sections make it mandatory for imposition of fine. Consequently the learned Additional Sessions Judge on agreement remanded the case to the trial court with the direction to pass sentence keeping in view the legal provisions. This remand order is the first impugned order before me.

( 3 ) CONSEQUENT to such remand order the concerned magistrate passed order dated 19. 11. 97 whereb

( 4 ) ON perusal of the order of the learned Additional Sessions Judge it transpires that the learned APP appearing for the State and the learned counsel for the complainant had agreed that the case be remanded to the learned M. M. for passing order of sentence in accordance with the mandatory provisions for imposition of fine contained in Sections 365, 380 and 452, Indian Penal Code It is also to be observed that Mr. kuldeep Kumar, Advocate who appeared on behalf of Mr. O. P. Soni, Counsel for the accused appellants, also submitted that the accused had no objection for remanding the case to the trial Court.

( 5 ) THE grievance of the accused appellants before me in this petition is that they were under the impression that the whole trial was going to be remanded and not that the case was going to be remanded only for further sentence in accordance with the said mandatory provisions. Their learned counsel contends that their appeal against conviction ought to have been decided by the appellate Court and in case the appellate Court felt that the sentence was not in accordance with the mandatory provisions of the aforesaid three sections the appellate Court could after notice impose fine if the appeal was to be dismissed. Learned counsel for the petitioners says that now the petitioners are no-where as their appeal against conviction has not been decided on merits which the appellate Court ought to have done.

( 6 ) IN the prayer clause of this petition I find that the petitioners have only prayed that the order dated 11. 11. 97 passed by the Additional Sessions Judge and the order dated 19. 11. 97 passed by the Metropolitan Magistrate, Delhi, be aside. However, during the course of hearing learned counsel for the petitioners made a request that after setting aside the two impugned Orders the Learned Additional Sessions Judge be directed to hear Crl. A. No. 3/97 on merits and if the learned appellate Court facts that sentence is not adequate he say pass necessary orders due notice to the appellants as is required under Section 386 of the Code.

( 7 ) LEARNED counsel appearing for the State agreed to the aforesaid prayer.

( 8 ) I have given my careful consideration and thought to the matter. It is apparent on the record that the impugned order dated 11. 11. 97 passed by learned Additional Sessions Judge was an agreed order and that the impugned order dated 19. 11. 97 was made by the learned Magistrate as per directions dated 11. 11. 97 given by the appellate Court. When the order dated 11. 11. 97 had been passed on agreement by the learned Additional Sessions

Click Here to Read the rest of this document