Full Judgment
Mulla, J.
1. This is an application in revision by 5 persons who have been convicted by a Magistrate of the First Class of an offence under Section 452, I.P.C. As the sentences passed upon them were not appealable they went up in revision to the learned Sessions Judge of Meerut, but with no success. They have now come up in revision to this Court. The case against the applicants was based upon a complaint made by one Bakhtawar Singh. It was clearly alleged in the complaint that the five applicants had come in a body armed with lathis to a gher which was in the occupation of the complainant and threatened to kill him and forcibly turned his cattle out and put their own cattle in. The gher as described by the complainant was used as a dwelling place and also as a place for the custody of property. The case was sent for an enquiry under Section 202, Criminal P.C., to a Second Glass Magistrate who after recording the evidence of the complainant and three other witnesses reported that there was a prima facie case of criminal trespass on the part of the applicants. Upon that report the learned Sub-Divisional Magistrate before whom the complaint had been made proceeded to issue a summons to the applicants under Section 448, I.P.C., and to try the case summarily. The summary trial held in these circumstances ended in the conviction of the applicants under Section 452, I.P.C. It may be noted here that the summons issued to the applicants was only under Section 448, I.P.C., and it is difficult to under, stand how the learned Magistrate proceeded to convict them under Section 452, I.P.C.
2. The substance of the argument on behalf of the applicants is that the learned Magistrate exceeded his jurisdiction in trying the case under Section 452, I.P.C., summarily and hence in view of the provisions of Section 530, Criminal P.C., the trial is void and must be set aside. Upon a consideration of all the facts of the case and the relevant provisions of the law, I think the contention is sound and must prevail. Upon the allegations made in the complaint there cannot be the slightest doubt that the applicants were charged with rioting as well as house trespass falling within the purview of Section 452, I.P.C. Neither of those two offences is summarily triable. When the learned Sub-Divisional Magistrate issued a summons under Section 448, I.P.C., he did not record any order to the effect that he did not believe any part of the case put forward by the complainant or that he thought that it was highly exaggerated. The complainant had been asked to produce evidence in support of his allegation and he had examined a number of witnesses. That evidence also supported his complaint and there was no reason why the learned Sub-Divisional Magistrate should have issued a summons under Section 448, I.P.C., only unless it was that a summary trial under Section 448, I.P.C. was more convenient. The procedure might have been convenient but it was highly irregular and also void under Section 530, Criminal P.C. He was not empowered by law to hold a summary trial in a case in which the accused persons were charged with offences under Sections 147 and 452, I.P.C. Section 530(q) clearly comes into operation and it must be held that the proceeding of the learned Magistrate was void. The same view of Section 530, Criminal P.C., has been' taken by the Calcutta High Court in Kailash Chunder Pal v. Joynuddi (1901) 5 C.W.N. 252 and Bishu Shaikh v. Saber Mollah (1902) 29 Cal. 409. The view is further supported by a decision of this Court in Emperor v. Ram Narain (1924) 11 A.I.R. All. 675. I have therefore no hesitation in holding that the trial held by the learned Sub-Divisional Magistrate in this case was void and the conviction and sentence of the applicants must be set aside. I therefore set aside the conviction and sentence of the applicants and direct that the case shall be re-tried by some other Magistrate of competent jurisdiction to whom it may be sent for trial by the District Magistrate of Meerut.