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Debidas Karmakar and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtKolkata
Decided On
Reported inAIR1930Cal61,121Ind.Cas.401
AppellantDebidas Karmakar and ors.
RespondentEmperor
Cases ReferredIn Nobin Krishna Mookerji v. Hasik Lal Laha
Excerpt:
- .....not be set aside. the main ground upon which the order has been assailed is that inasmuch as the learned sessions judge had already at a previous stage rejected an application for setting aside an order dicharging the petitioners under section 409, criminal p.c. he had exhausted his revisional power, and could not make the order now complained of under section 437, criminal p.c. the contention being that that order is, practically speaking, a review of his previous order, and therefore not sustainable in law. in my opinion there, is no substance in this contention. the ' facts are shortly these:2. the two petitioners and a woman named tarubala were sent up for inquiry before mr. a. hossain, deputy magistrate of burdwan under sections 307 and 326, i.p.c. the petitioners were discharged.....
Judgment:

Graham, J.

1. This rule was issued calling upon the District Magistrate of Burdwan to show cause why an order of the Sessions Judge of Burdwan directing that the petitioners should be committed for trial to the Court of Sessions on a charge of murder should not be set aside. The main ground upon which the order has been assailed is that inasmuch as the learned Sessions Judge had already at a previous stage rejected an application for setting aside an order dicharging the petitioners under Section 409, Criminal P.C. he had exhausted his revisional power, and could not make the order now complained of under Section 437, Criminal P.C. the contention being that that order is, practically speaking, a review of his previous order, and therefore not sustainable in law. In my opinion there, is no substance in this contention. The ' facts are shortly these:

2. The two petitioners and a woman named Tarubala were sent up for inquiry before Mr. A. Hossain, Deputy Magistrate of Burdwan under Sections 307 and 326, I.P.C. The petitioners were discharged under Section 209, Criminal P.C., the Magistrate being of opinion that the evidence against them was so meagre and wretched that no jury could possibly convict upon it. Before the commencement of the trial an application was made before the Sessions Judge by the father of the woman Tarubala praying that the order of discharge should be set aside and that the present petitioners should be ordered to be committed for trial also. That application was summarily rejected on 10th July 1925 apparently upon a perusal of the commitment order. At a later stage with all the evidence before him the learned Sessions Judge came to the conclusion that the present petitioners had been improperly discharged and recorded the order which forms the subject matter of this rule.

3. The question is whether he had jurisdiction to make the order. In my judgment the contention that he bad no such jurisdiction, because he had made the previous order rejecting a similar application, is without substance. Jurisdiction to make an order of this description, is a continuing jurisdiction, and is not barred merely because an application may have been previously refused upon different materials. An order of this nature is not a final order but is open to reconsideration upon proper materials. The case is analogous to the case of an order of dismissal or discharge. Such orders do not take away the jurisdiction of the Magistrate. A Court is competent to take cognizance of a complaint which it has already dismissed under Section 203, Criminal P.C., without any order for further inquiry by a superior tribunal Emperor v. Chinna [1903] 26 Mad. 126 following Divarknath v. Benimadhab [1901] 28 Cal. 652. The position is the same as regards an order of discharge, though there may be some doubt where such an order has been passed upon a consideration of the full materials. Section 369, Criminal P.C., which was apparently relied upon by the petitioners before the Sessions Judge certainly has no application, since an order of this nature is not a judgment. It is also in my opinion, a material fact in the present case that the subsequent order directing commitment was made upon fresh materials when the entire evidence was before the Judge, whereas his first order was a summary one based merely on a perusal of the commitment order, which was all that was before him at that stage. If the Judge with these fresh materials before him was of opinion that there had been an improper discharge, it seems to me that it was his duty to make the order, and that if he failed to do so, a miscarriage of justice might result.

4. It was next argued that, whatever view may be taken as to the legality of the order, the learned Sessions Judge ought not to have made the order, since the case now made against the petitioners is not the case which was made out at the trial, and because there is not the remotest chance of a conviction being had. As to this the most material fact seems to be that the learned Judge with all the evidence before him was of opinion that there was a sufficient case to go to a jury. There is moreover another circumstance of importance, and it is this that at the trial, which has already taken place, the jury unanimously found the woman Tarubala guilty under Sections 326 and 109, I.P.C. This in itself gives rise to the inference that the jury believed the story that the woman merely abetted the crime, and that the injuries were inflicted by some other person or persons presumably the present petitioners. In short it furnishes a good reason for holding that the Judge was right in ordering the commitment of the petitioners. There was further the evidence of two witnesses who deposed to having seen the petitioners running away about the time of the occurrence with weapons in their hands. There may be reasons why that evidence should not be accepted. But it is evidence which ought to go before a jury.

5. For the reasons stated I am of opinion that the order was in accordance with law, and that it was in the circumstances a right and proper order. I would therefore discharge the Rule.

Suhrawardy, J.

6. I agree. The real controversy in this case turns upon the meaning of the words 'on examining the record of any case under Section 435 or other wise.' It is argued that the learned Sessions Judge having refused to interfere with the order of commitment on an application made by the father of the woman is precluded from considering the matter under Section 437, Criminal P.C. I do not think that this contention should prevail upon the facts of this case. The first application was made by the father of the woman invoking the Court's jurisdiction under Section 435 and inviting it to call the record of the case and to pass orders thereon. This the Court refused to do. This was not in my opinion an order under Section 435 which says that the Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court, etc., etc. It cannot therefore be said that on the previous occasion the Court exercised any power given to it under Section 437 which says that when on examining the record called up under Section 435 the Sessions Judge considers that such case is triable exclusively by the Court of Sessions, etc., etc. Then again with regard to meaning of the words or otherwise, 'I am inclined to give them a wider meaning than confining them to the provisions of Section 435. In Nobin Krishna Mookerji v. Hasik Lal Laha [1884] 10 Cal. 1047 the words 'or otherwise' were considered and interpreted. The learned Judges held they must mean not 'in another way whatsoever' but in any other way provided by the Code. In the present case the Sessions Judge on reading the judgment of the enquiring Magistrate refused to call up the record. Then subsequently in the course of the trial against the other accused he thought that it was ,a proper case for him to interfere under Section 437, Criminal P. C. This is exactly the procedure which was considered to bewithin the meaning of the words 'or otherwise' in Nabin Krishna Mookerji's case [1884] 10 Cal. 1047 where it was held that the Court may exercise the power under this section if it acts in an appellate Court under Section 423. If the Sessions Judge had called up the record and on perusing the same had refused to interfere, there might have been room for controversy that he had no power to revive or vary his order under Section 369.

7. The next ground upon which this rule was obtained is that the petitions were deprived of the right of having their cases examined again before commitment. There does riot seem to be any substance in this contention as the petitioners were tried by the Magistrate who thought that it was not a case for commitment, but the learned Sessions Judge is of a different opinion. Section 437 does not provide that there should be a fresh enquiry before commitment is ordered by the superior Court, under that section. I agree that the rule should be discharged.


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