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Daya Nand and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1925All298a
AppellantDaya Nand and ors.
RespondentEmperor
Excerpt:
- - i have compared the two and i am clearly of opinion that the learned magistrate was very much influenced by the fact that a civil suit was pending and he regarded the complaint as a sort of forestalling the civil suit. in the circumstances of the case i consider that the learned sessions judge's order was a good order, and ought to stand......code, and were discharged by that magistrate. the complainant went to the sessions judge and that learned judge has ordered a further enquiry into the facts.2. this revision has been filed against the order of the learned sessions judge.3. it was urged by the learned counsel holding the brief for the counsel of the applicants, that it was not competent for the sessions judge to order a further enquiry on the facts, because the learned magistrate had taken all the evidence that had been adduced on behalf of the complainant. several cases were cited in support of this proposition of law i have examined those cases, and i have also examined the full bench case of queen empress v. chotu (1886) 9 all. 52. i think, to say that a further enquiry cannot be ordered by the sessions judge on the.....
Judgment:

Mukerji, J.

1. The applicants were charged before a learned Magistrate with the offence of house trespass under Section 448 of the Indian Penal Code, and were discharged by that Magistrate. The complainant went to the Sessions Judge and that learned Judge has ordered a further enquiry into the facts.

2. This revision has been filed against the order of the learned Sessions Judge.

3. It was urged by the learned Counsel holding the brief for the counsel of the applicants, that it was not competent for the Sessions Judge to order a further enquiry on the facts, because the learned Magistrate had taken all the evidence that had been adduced on behalf of the complainant. Several cases were cited in support of this proposition of law I have examined those cases, and I have also examined the Full Bench case of Queen Empress v. Chotu (1886) 9 All. 52. I think, to say that a further enquiry cannot be ordered by the Sessions Judge on the same facts as have been considered by the learned Magistrate is to put the law too wide and contrary to the opinion expressed in the Full Bench case. I have found that in each and every one of the cases relied on by the learned Counsel for the applicants, the learned Judges took into consideration the facts of the particular case before them, and did not profess to lay down a rule which would really stultify the language of the section itself. Under Clause (1) of Section 253 of the Code of Criminal Procedure, a Magistrate is authorized to discharge an accused person if he finds that no case against the accused person has been made out, which, if unrebutted, would warrant his conviction. There may be cases in which the Sessions Judge or any other revisional court, may find that on the facts before the Magistrate there was enough material to warrant a conviction of the accused person, and there was enough there to call upon the accused person to enter on his defence, and an order for further enquiry in the circumstances would be justified.

4. Let us now look into the facts of this case. This really means that I have to compare the two judgments, one delivered by the learned Magistrate and the other by the learned Sessions Judge. I have compared the two and I am clearly of opinion that the learned Magistrate was very much influenced by the fact that a civil suit was pending and he regarded the complaint as a sort of forestalling the civil suit. In the circumstances of the case I consider that the learned Sessions Judge's order was a good order, and ought to stand. The application is dismissed.


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