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Bindeshri Dube and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All266; 59Ind.Cas.193
AppellantBindeshri Dube and ors.
RespondentEmperor
Cases ReferredChandan v. Kallu
Excerpt:
criminal procedure code (act v of 1898), section 437 - district magistrate, power of, to direct re-trial by himself--further inquiry, when to be directed. - - before proceeding to discuss the circumstances of the case one has to bear in mind some of the general principles which have to be considered and applied in deciding a matter like the present one. i have been taken through the judgment of the presiding officer of the first court and it seems to me a well considered and reasoned judgment which can, under no circumstances, be said to be either perverse foolish or prima facie incorrect......of criminal procedure. he further says that the trial will take place in his court.' perhaps, the district magistrate was thinking of a farther inquiry and has confused the re trial with what the law allows a further inquiry. of course, he could not under the law direct a re trial by himself. the order, as it is put down, strictly speaking, is without jurisdiction, but taking the order to be as one passed under section 437 of the code of criminal procedure there are serious difficulties in the way of the magistrate's order being confirmed. before proceeding to discuss the circumstances of the case one has to bear in mind some of the general principles which have to be considered and applied in deciding a matter like the present one. one of those is that, if the circumstances and the.....
Judgment:

Gokul Prasad, J.

1. This is an application to revise an order of the District Magistrate of Basti directing, as he says in his judgment, a re trial of the applicants under Section 437 of the Code of Criminal Procedure. He further says that the trial will take place in his Court.' Perhaps, the District Magistrate was thinking of a farther inquiry and has confused the re trial with what the law allows a further inquiry. Of course, he could not under the law direct a re trial by himself. The order, as it is put down, strictly speaking, is without jurisdiction, but taking the order to be as one passed under Section 437 of the Code of Criminal Procedure there are serious difficulties in the way of the Magistrate's order being confirmed. Before proceeding to discuss the circumstances of the case one has to bear in mind some of the general principles which have to be considered and applied in deciding a matter like the present one. One of those is that, if the circumstances and the evidence are such that two different Courts might take a different view of the evidence, no further inquiry should be directed; vide Chandan v. Kallu 9 Ind, Cas. 274 : 8 A.L.J. 45 : 12 Cr. L.J. 45. Another principle has to be borne in mind that no Court is to pass an order to the prejudice of an accused person without giving him a notice to show cause against it. It is unnecessary to enter into the question of want of notice for the purposes of deciding this application. I have been taken through the judgment of the presiding officer of the first Court and it seems to me a well considered and reasoned judgment which can, under no circumstances, be said to be either perverse foolish or prima facie incorrect. There is no suggestion in this case that any further evidence is forthcoming and it is difficult to understand on what grounds the District Magistrate has set aside the order of discharge passed by the first Court and directed, what he calls, a re trial. I, therefore, set aside, the order of the District Magistrate directing a re trial or a further inquiry if that word means that and direct that no further action be taken against the accused.


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