P.L. Bhargava, J.

[1] Rakshpal Singh 'alias' Rajpal Singh and his brothers, Rampal Singh and Ram Singh, along with their father, Makrand Singh, were prosecuted for an offence punishable under Section 325, read with Section 34, Penal Code for voluntarily causing grievous hurt to Ruppa, the complainant. The accused persons were tried by an Honorary Special Magistrate of first class at Hardoi. The Magistrate found Rampal Singh and Ram Singh not guilty and acquitted them; but he came to the conclusion that Rakshpal Singh alias Rajpal Singh and Makrand Singh had committed an offence punishable under Section 323, Penal Code and as such the case against them was triable by a Panchayati Adalat. In this view of the case, he transferred it to the Panchayati Adalat for disposal.

[2] Against the order of the Magistrate, Rakshpal Singh and Makrand Singh filed a revision in the Court of the Sessions Judge of Hardoi. The learned Sessions Judge was of the opinion that the order of the Magistrate directing the transfer of the case to the Panchayati Adalat was illegal and liable to be set aside. Accordingly, he made this reference.

[3] The reference has been supported by the learned Counsel appearing on behalf of the complainant; but it has been opposed on behalf of the accused persons.

[4] As stated above, the accused persons were being prosecuted for an offence punishable under Section 325/34, Penal Code. It is not disputed that the offence under the said section was triable by the Magistrate himself. In order to prove that the accused had caused grievous hurt to the complainant and had thereby committed an offence under Section 325/34, Penal Code, besides the oral evidence, the injury report prepared by the Medical Officer, who had examined the complainant, was also produced. The Medical Officer was not available to prove the injury report as he had proceeded to England on long leave. Consequently, to prove the injury report the compounder, in whose presence the injury report had been drawn up, was examined. He stated that, the injury report had been drawn up and signed by the Medical Officer.

The statement was made by him with reference to the original injury register, which he had brought with him and of which the injury report on the record was a carbon copy. The learned Magistrate was of the opinion that the injury report was not proved according to law and as such there was no evidence on the record to show that any of the injuries inflicted upon the complainant was a grievous hurt. In this view of the matter he rejected the injury report and held that Rakshpal Singh and Makrand Singh were guilty of an offence under Section 323, Penal Code. Having come to this conclusion., in view of the provisions of Section 56, U.P. Panchayat Raj Act, he transferred the case to the Panchayati Adalat.

[5] The learned Sessions Judge held in revision that the injury report had been duly proved and it was admissible in evidence under Section 32(2), Evidence Act and that the trial Court was wrong in recording a finding of guilty under Section 323, Penal Code and then transferring the case to the Panchayati Adalat.

[6] On behalf of the complainant, it has been argued that the learned Magistrate was wrong in holding that the injury report had not been proved and as such it was inadmissible in evidence; and that, apart from the injury report, there was ample evidence on the record to show that the complainant had received grievous hurt. In support of his first contention, learned counsel for the complainant has relied upon the provisions of Section 32(2), Evidence Act; and also upon a decision of this Court in -- 'Mohan Singh v. Emperor', AIR 1925 All 413 (A), where it was held that a 'post mortem' report is admissible in evidence under Section 32(2), Evidence Act as being, a statement made by a dead person in the ordinary course of business and in the discharge of his professional duty. The Civil Surgeon in that case could not be examined to prove the rep