The power of ordering re-trial should be sparingly used and only for grave reasons. Re-trial is not a weapon to harass an accused or a sort of a bounty on the prosecution to enable it to do something which did not and could not have been asked for by it.

S.K. Chawla, J.

1. This is a revision by an accused directed against an order of his re-trial.

2. The applicant/accused Babu Singh was convicted by J.M.F.C., Bhind of the offence under Section 325, Indian Penal Code on the finding that he had on 17-11-1982 at about 9 A.M. caused injury to the nose of one Chotelal (P.W.1), which was a grievous injury. The sentence inflicted was a fine of Rs. 1,000/- in default, simple imprisonment for 6 months. It was further directed that Rs. 500/- out of the fine, if recovered, shall be paid to Chotelal as compensation. Aggrieved by that Judgment, the accused filed an appeal in Court of Session, Bhind. Shri R.P. Dubey, IInd Addl. Sessions Judge, Bhind, who heard the appeal, by Judgment dated 4-10-1990, set aside the conviction and sentence of the accused under Section 325, Indian Penal Code but remanded the case to the trial Court for re-trial for an offence under Section 326, Indian Penal Code. It was directed that after the framing of charge under Section 326, Indian Penal Code against the accused, both the parties shall be given opportunity to adduce evidence again and thereafter the case shall be decided afresh by the trial Court on merits. It is against that order of remand of the case for re-trial, that accused has now come to this Court in revision.

3. In the impugned Judgment the learned Addl. Sessions Judge has observed that Chotelal (P. W. 1) in his report (Ex. P-1) had stated that accused Babu Singh had bitten his nose by teeth. This was also the police statement of Chotelal. A reference to police statement was perhaps made by the Judge for the limited purpose of considering the matter about charge. The learned Addl. Sessions Judge further observed that Chotelal in his testimony before the Court had also deposed that accused Babu Singh had thrown him down on the ground and bitten his nose by teeth. Even Chotelals wife Mst. Devi (P.W. 4) had deposed that she saw the nose of her husband, which had been bitten by teeth. The learned Judge observed that the police ought to have filed a challan against the accused for an offence under Section 326. Indian Penal Code. Even if the police filed a challan for an offence under Section

325. Indian Penal Code, the learned trial Magistrate should have applied his mind and should have framed charge under Section 326. Indian Penal Code in place of Section 325. The names of A.P.P. and the defence counsel were not recorded in the order sheet by the trial Magistrate on the date when charge was framed by him against the accused. Hence it appeared that the trial Magistrate had. without hearing either the A.P.P. or the defence counsel and without applying his own mind, framed the charge under Section 325. Indian Penal Code just because the police had filed the challan for that offence. The material disclosed in the case justified the framing of charge under Section 326 Indian Penal Code. The learned trial Magistrate had committed another illegality inasmuch as he had not sentenced the accused to any substantive sentence of imprisonment but had merely fined him Rs. 1,000/-. It was mandatory to have inflicted substantive sentence of imprisonment on the accused for the offence under Section 325, Indian Penal Code. Considering all these alleged illegalities, the learned Addl. Sessions Judge by the impugned Judgment, while setting aside conviction and sentence of the accused under Section 325. Indian Penal Code, remanded the case for re-trial of the accused for an offence under Section 325, Indian Penal Code.

4. Shri S.P.P. Shrivastava, learned counsel for the accused/applicant, contended that the alleged incident was said to have taken place on 17-11-1982. The learned Addl. Sessions Judge by the impugned Judgment dated 4-10-1990 i.e., after about 8 years of the alleged incident, had directed re-trial of the accused, which was nothing short of harassment of the accused. The accused will have to again run the gauntlet of a fresh trial, which may take some more