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Liaqat HusaIn and ors. Vs. Emperor Through Ganga Sahai - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All258(2); 43Ind.Cas.622
AppellantLiaqat HusaIn and ors.
RespondentEmperor Through Ganga Sahai
Excerpt:
criminal procedure code (act v of 1898), sections 439, 203 - application to set aside order of dismissal under section 203--notice to accused, whether necessary. - .....should be tried toy another magistrate. before making his order he did not issue notice to the accused persons to show cause why the order of dismissal should lot be set aside. by reason of this omission the present application for revision has been made, and the only contention put forward on behalf of the applicants is that the court ought to have issued notice to them and for not having done so, its order ought to be set aside. it is conceded that the order of the learned sessions judge is not illegal by reason of his omission to issue notice, but it is urged that as the order was to the prejudice of the applicants, notice ought to have been issued. no doubt it has been held in this court that when an order is made to the prejudice of an accused person it is desirable that he.....
Judgment:

P.C. Banerji, J.

1. The applicants in this case were charged before a Magistrate of the First Class under Sections 342, 323 and 454 of the Indian Penal Code by one Ganga Sahai, who filed a petition of complaint in the Court of a Magistrate of the First Class. -The Magistrate apparently after examining the complainant ordered an enquiry under Section 202 of the Criminal Procedure Code by a Magistrate of the Third Class. A report was made by that Magistrate and as a result of that report the complaint was dismissed under Section 203 without issuing any notice to the persons against whom the complaint was made. Upon application made to the learned Sessions Judge, he bet aside the order of dismissal and directed that the case should be tried toy another Magistrate. Before making his order he did not issue notice to the accused persons to show cause why the order of dismissal should lot be set aside. By reason of this omission the present application for revision has been made, and the only contention put forward on behalf of the applicants is that the Court ought to have issued notice to them and for not having done so, its order ought to be set aside. It is conceded that the order of the learned Sessions Judge is not illegal by reason of his omission to issue notice, but it is urged that as the order was to the prejudice of the applicants, notice ought to have been issued. No doubt it has been held in this Court that when an order is made to the prejudice of an accused person it is desirable that he should be afforded an opportunity of showing cause against the making of the order, but this rule has been held to have certain limitations. Where the accused person was not called upon to appear in the Court below in the first instance and where an order was only made under Section 203, the issue of a notice was unnecessary. This was held by Mr. Justice Tudball in Angan v. Ram Pirbhan 18 Ind. Cas. 146 : 35 A. 78 : 10 A.L.J. 531 : 14 Cr. L.J. 2. The learned Judge observed: 'In my opinion a notice to a person against whom a complaint is made is quite unnecessary where it is sought to set aside the summary order in a proceeding to which he was actually no party', and he held that the cases in which a notice was necessary before an order could be made to the prejudice of an accused person, were cases in which after an accused person was tried and discharged a further enquiry was ordered behind his back and without notice to him. A similar view was held in the Calcutta High Court by certain of the Judges who decided the case of Hart Dass Sanyal v. Saritulla 15 C. 608 (F.B.) : 13 Ind. Jar. 55 : 7 Ind. Dec. (N.S.) 989. In the course of his judgment Mr. Justice Prinsep observed; 'A notice certainly would not be necessary before an order to set aside an order of dismissal under Section 203 could be passed, since that order was not passed with a notice to the accused person or in his presence and, therefore, is probably unknown to him.' The learned Chief Justice made remarks to the same effect at page 617. In view of these authorities, from which I see no reason to differ, I do not think that this application is sustainable and that notice was necessary. I accordingly reject the application and discharge the order staying proceedings.


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