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Mainal Haque and ors. Vs. Ganga Prosad Sarkar - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMainal Haque and ors.
RespondentGanga Prosad Sarkar
Excerpt:
- - the fact of an enquiry on the scene of the occurrence and its inspection does not make the judge or the magistrate interested in the case within the meaning of section 556. the learned judge failed to consider the effect of the explanation when holding that the learned magistrate should not have heard the case after the local enquiry......that the learned trial magistrate after examining the complainant on 12th january, 1953 held local enquiry on 15th january before issuing processes for the attendance of the accused.from the order of the learned magistrate dated 9th january, 1953 it appears that he found marks of ploughing on the land. on that date he summoned the petitioners under sections 143/447/427 i p. c. in the view of the learned additional sessions judge the fact that the learned trial magistrate went to the scene of occurrence and made a local enquiry disqualified him from trying the case. he observes that it was not fair on the part of the trying 'magistrate to make a local enquiry on the scene of occurrence before the trial commenced. he thinks the local enquiry vitiates the trial.4. the learned judge is.....
Judgment:

Ram Labhaya, J.

1. This is a reference under Section 438, Criminal Procedure Code from the Court of the Additional Sessions Judge, Lower Assam Districts.

2. The reference arises out of a criminal case No. 50C of 1953 under Section 447, Indian Penal Code. The petitioner before the learned Additional Sessions Judge were found guilty and convicted under Section 447, Indian Penal Code and they were ordered to pay a fine of Rs, 20/- each and in default to undergo rigorous imprisonment for ten days. The petitioners were also convicted under Section 143 but no separate sentences were passed under this head of the charge.

3. The case for the complainant was that he had a plot of land measuring 41 bighas at Bariabari. It was his ancestral land and it had fallen to his share. He had grown cheena, Khasari, Kalai and paddy. The accused (petitioners) came in a body, trespassed on the land and damaged his standing crop. The accused claimed Ejmali proprietary rights over the land in dispute. The petitioners were found guilty. They invoked the re-visional jurisdiction of the sessions court and assailed the correctness of the conviction by a revision petition. The learned Addl. Sessions Judge has come to the conclusion that the convictions of the petitioners are not sustainable on the ground that the learned trial Magistrate after examining the complainant on 12th January, 1953 held local enquiry on 15th January before issuing processes for the attendance of the accused.

From the order of the learned Magistrate dated 9th January, 1953 it appears that he found marks of ploughing on the land. On that date he summoned the petitioners under Sections 143/447/427 I P. C. In the view of the learned Additional Sessions Judge the fact that the learned trial Magistrate went to the scene of occurrence and made a local enquiry disqualified him from trying the case. He observes that it was not fair on the part of the trying 'Magistrate to make a local enquiry on the scene of occurrence before the trial commenced. He thinks the local enquiry vitiates the trial.

4. The learned judge is entirely wrong in the view that he has taken of the matter. Under Section 202, Cr P. C. it was open to the learned Magistrate to enquire into the case himself after examining the complainant.

This was one of the courses permitted to him by Section 202, Enquiry within the meaning of this section is not limited to and does not necessarily mean an enquiry by examining witnesses or by holding investigation into the case in any particular form. It was open to him to enquire into the case in any manner that he could have adopted if the accused had been in attendance. Going to the scene of occurrence and making a local enquiry was within his competence. In fact being a first class Magistrate he could have directed a local enquiry or investigation to be made by any Magistrate subordinate to him, by a police officer or by such other person as he thought fit. He could direct an enquiry and investigation to be made on the spot.

It follows that what he could direct others to do he could do himself also. He thus was fully competent to hold the local enquiry as he did under 6. 202.

5. Section 556 of the Criminal Procedure Code deals with cases in which judges or Magistrates may not try cases in which they are personally interested. The explanation to the section provides that a Judge or Magistrate shall not be deemed a party, or personally interested, within the meaning of this section, to or in any case by reason only that he is a Municipal Commissioner or otherwise concerned therein in a public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committee, or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case.

The explanation reproduced above would fully cover the circumstances of this case. The fact of an enquiry on the scene of the occurrence and its inspection does not make the judge or the Magistrate interested in the case within the meaning of Section 556. The learned Judge failed to consider the effect of the explanation when holding that the learned Magistrate should not have heard the case after the local enquiry. The recommendation made by him receives no support from the statute or the authority. The reference is therefore rejected and the revision petition is dismissed.


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