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Kanbi Bechar Lala and ors. Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. No. 463 of 1961
Judge
Reported inAIR1962Guj316; (1963)0GLR57
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 251A, 251A(2) and 436
AppellantKanbi Bechar Lala and ors.
RespondentState and anr.
Appellant Advocate M.P. Thakkar, Adv.
Respondent Advocate B.R. Sompura, Asstt. Govt. Pleader and; B.D. Shukla, Adv.
DispositionApplication dismissed
Cases ReferredR. Govindaswamy v. State
Excerpt:
- - therefore, the contention on behalf of the petitioner that as the trial has already commenced, there is no scope for an inquiry and that a sessions judge has no power to interfere in cases of discharge under section 251-a (2) is well founded. in any case, the order passed by the learned sessions judge is clearly proper in view of the wording of section 436, criminal procedure code......the words 'at the commencement of the trial.' are used. in section 4(1) (k), criminal procedure code, 'inquiry' has been defined as 'to include every inquiry other than a trial conducted under criminal procedure code by a magistrate or court'. it is provided in section 4(1) of criminal procedure code as follows:'in this code the following words and expressions have the following meanings unless a different intention appears from the subject or context :but, ordinarily, a trial is supposed to commence after a charge is framed, and, therefore, the proceedings before framing the charge are to be taken as an inquiry. in section 251-a this distinction has not been adopted.5. the learned counsel for the applicant has relied on r. govindaswamy v. state, air i960 andh pra 391, where it was.....
Judgment:
ORDER

V.B. Raju, J.

1. The applicants, who were charged under sec-tions 147, 447, 426 and 505, Indian Penal Code, were discharged by the learned Magistrate. In revision, the learned Sessions Judge set aside the order of discharge and passed an order under Section 436, Cr. P. Code, directing further inquiry.

2. in revision, it is contended that the learned Sessions Judge was not right in doing so. It is atso urged that it is not competent to order an inquiry in a case in which a trial had already been commenced. I reject both these contentions for the following reasons.

3. The learned Sessions Judge has observed that the learaed Magistrate has not discussed the evidence in a proper manner end rejected it alter a superficial discussion. Tbe learned Sessions Judge has referred to three reasons on which the order of discharge passed by the learned Magistrate was based. The learned Sessions Judge has given detailed reasons for observing that these reasons are superficial. The learned Sessions judge also observed that the learned Magistrate had not considered a part of the evidence. For these reasons, the learned Sessions Judge observed that the order of the learned Magistrate was based on flimsy and superficial considerations and is manifestly unreasonable, perverse and absurd. After going, through para 7 of the judgment of the learned Sessions Judge, I am not prepared to say that there was no justification for these observations made by the learned Sessions Judge. There was prosecution evidence that a hedge was cut, that a gate was broken and that a neem tree was. also cut and that the total damage caused to the complainant was to the extent of Rs. 500/-. Such acts cannot it proved be said to be bona fide acts done in the bona fide exercise of a right of way. I am, therefore, not prepared to set aside in revision the order passed by the learned Sessions Judge.

4. It is next contended that In a case under Section 251-A, Cr. P. Code, the trial commences as soon as the accused appears or is brought before a Magistrate and that the order of discharge is an order passed in the course of a trial as provided in Section 251-A of the Criminal Procedure Code, and that therefore the Sessions Judge was wrong in directing a further inquiry. Section 436, Criminal Procedure Code, in terms, allows a Sessions Judge to direct further inquiry into the case of any person accused of an offence who has been discharged, In this case, the accused has been discharged under Section 251-A, Criminal Procedure Code. It is true that in Section 251-A the words 'at the commencement of the trial.' are used. In Section 4(1) (k), Criminal Procedure Code, 'inquiry' has been defined as 'to include every inquiry other than a trial conducted under Criminal Procedure Code by a Magistrate or Court'. It is provided in Section 4(1) of Criminal Procedure Code as follows:

'In this Code the following words and expressions have the following meanings unless a different Intention appears from the subject or context :

But, ordinarily, a trial is supposed to commence after a charge is framed, and, therefore, the proceedings before framing the charge are to be taken as an inquiry. In Section 251-A this distinction has not been adopted.

5. The learned counsel for the applicant has relied on R. Govindaswamy v. State, AIR I960 Andh Pra 391, where it was observed at p. 394 as follows:

'There appears no reason why effect should not be given to the plain meaning of the expression 'at the commencement of the trial' used in Sub-section (1) of Section 251-A. Therefore, the contention on behalf of the petitioner that as the trial has already commenced, there is no scope for an inquiry and that a Sessions Judge has no power to interfere in cases of discharge under Section 251-A (2) is well founded. If a Sessions Judge acting under Section 435 finds in such cases that a trial should be conducted on charges in respect of which there was a discharge, the only course available to him is to report the matter under 'Section 438 for the orders of the High Court. It follows that the order in question of the Sessions Judge has to be set aside.'

But with great respect, I find It difficult to agree. The expression 'at the commencement of the trial' used in Section 251-A, Criminal Procedure Code, does not cut down the scope of Section 436, Criminal Procedure Code, which allows a Sessions Judge to direct further inquiry into the case of any person accused of an offence who has been discharged. The word 'trial' has not been defined in the Criminal Procedure Code. It may have one meaning under Section 403 and another meaning under Section 251-A, Criminal Procedure Code. In any case, the order passed by the learned Sessions Judge is clearly proper in view of the wording of Section 436, Criminal Procedure Code. Even if the High Court has to pass an order in such cases, the High Court will have to pass an order in terms of Section 436, Criminal Procedure Code, and order further inquiry.

6. The revision application is, therefore, dismissed.


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