ORDER
Datta, J.C.
1. This is a reference under Section 438, Cr. P. C. made by the learned Sessions Judge, Manipur, recommending that the conviction and sentences passed on the four petitioners before him under Section 323, I.P.C., by the S.D.M., Churachandpur, ought to be set aside.
2. I am afraid the reference must be accepted as the procedure followed by the learned Magistrate is full of illegalities. The learned Government Advocate also conceded the same.
3. The illegalities have been discussed at length in the reference of the learned Sessions Judge, and it will be enough to point out only a few for the purpose of this order. The learned Magistrate wrongly proceeded to try the case as a summons case, and even though the accused had pleaded not guilty, he proceeded to judgment with-it out hearing the witnesses that the parties might have produced if a chance for the same had been given. The accused were thus denied the opportunity to substantiate their plea, with the result that they were prejudiced in their defence. The sentence passed, namely, fine of Rs. 50/- payable jointly and severally was also illegal. The judgment Of the learned Magistrate cannot, therefore, be supported and must be set aside.
4. Complainant’s own examination goes to show that he was the aggressor. The accused therefore, had the right of defence of property. The Injuries caused were few and mere scratches and bruises. It cannot, therefore, be said that the accused exceeded the right of private defence. No useful purpose will therefore be served by ordering a retrial,
5. The result is that the convictions and sentence passed on the accused by the S.D.M., Churachandpur are set aside, and the fine, if recovered, shall be refunded forthwith. In the circumstances already state, there shall be no re-trial of the accused.
