IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.237 of 2009 SHEIKH ABDULLAH @ MD.ABDULLAH Versus STATE OF BIHAR ----------- 5 8.5.2009 The instant revision application is directed against the judgment and order dated 2.6.2008, passed by learned Sessions Judge, Samastipur in Criminal Appeal No.30 of 2004, whereby the appeal preferred against the judgment and order of conviction dated 21.2.2004 passed by the Judicial Magistrate Ist Class, Samastipur in C.R.Case No.1102 of 1998, T.R.No.115 of 2008 was dismissed for default. Learned counsel for the petitioner submits that the trial court convicted the petitioner under section 323 of the Penal Code and sentenced him to undergo simple imprisonment for six months. However, the trial court acquitted his wife and sons. Being aggrieved by the judgment of the trial court, the petitioner preferred appeal before the Appellate Court which got dismissed for default. He further submits that the trial court ought to have acquitted the petitioner as the material coming against him is the same as other co-accused. He submits that as against the sentence of six months, the petitioner has already remained in custody for more than 3 1/2 months. He submits that the petitioner is aged about 70 years. Having heard counsel for the parties and on going through the materials on record, I find that the submission of learned counsel for the petitioner is well founded. The conviction of the 2 KHAN petitioner under section 323 of the Penal Code is set aside. The petitioner is directed to be released forthwith, if not wanted in any other case. For the same reason, the order of the Appellate Court dismissing the appeal for default is also set aside. In the result, this revision application is allowed. Let this order be communicated through fax at the cost of the petitioner to Shri R.N.Nigam, Judicial Magistrate Ist Class, Samastipur in C.R.No.1102 of 1998, T.R.No.115 of 2008/T.R.No.2557/09. (S.P.Singh,J)