1. This is an application under Section 439, Criminal P. C. at the instance of Jagat Bandhu Ganguly who has been committed by a Magistrate of Alipore to the Court of Session for taking his trial under Section 408/109, I. P. C. Kanai Lal Mitra who was co-accused with him has also been committed to the Court of Session to take his trial under Sections 408, 467 and 477A, I. P. C. The present petitioner before this Court is Jagat Bandhu Ganguly alone and the prayer made on his behalf is that the order of commitment in so far as he is concerned should be quashed.
2. In order to appreciate the grounds upon which the prayer for quashing of commitment is based it is necessary to refer to a few facts. Jagat Bandhu Ganguly was previously put upon his trial before the same Magistrate under Section 136, Calcutta Port Act (Bengal Act III of 1890). That case ended in an order of acquittal under Section 258, Criminal P. C. on 31-10-53. It was alleged in that trial that the present petitioner had dishonestly accepted for himself gratification in the shape of certain raw materials namely M. S. Rods from a firm of contractors named N. Banduri & Brothers as a reward for showing favour to the said firm in the exercise of his official function. In acquitting the present petitioner in that case the learned Magistrate made certain observations which, it is contended now on behalf of the petitioner, stand in the way of the trial of the petitioner on a charge under Section 408/109, I. P. C.
It has been contended that the learned Magistrate while acquitting the petitioner found in clear terms that it has neither been proved that the accused, namely the present petitioner,showed any favour to Prafulla Banduri in the matter of securing the order for the firm of Prafulla Banduri or in the matter of fixing the wastage rate or in issuing sub-quota certificate or issuing excess raw materials from the Stores as alleged by the prosecution, nor was it proved that the accused, namely the present petitioner, accepted any iron rod as illegal gratification for the favour shown to Prafulla Banduri as alleged. It is argued on behalf of the petitioner that in the face of these findings of the learned Magistrate a fresh trial of the petitioner under Section 408/ 109, I. P. C. is not permissible.
In this connection reliance has been placed upon a recent Bench decision of this Court in the case of -- 'Manikchand Agarwalla v. The State', : AIR1952Cal730 (A). I happened to be a member of that Bench and in that case the principles laid down by the Judicial Committee in the case of -- 'Samba Sivam v. Public Prosecutor, Federation of Malaya', 54 Cal WN 695 (PC) (B) have been followed. It is argued on behalf of the petitioner that in view of what was held in 'Manikchand Agarwalla's case (A)' the present commitment order directing the petitioner to stand his trial in the Court of Session under Section 408/109, I. P. C. is bad.
3. In 'Samba Sivam's case (B)' it was held that the verdict of acquittal on the munition charge was admissible in the trial under the fire arms charge though it was not conclusive. The facts were somewhat different in 'Manikchand Agarwalla's case (A)' where it was pointed out by the learned Chief Justice that the previous order of acquittal was in the particular circumstances of that case all but conclusive. Each case has, therefore, to be decided on its own facts. So far as the present case is concerned, the previous acquittal order was passed by the same Magistrate after the commitment order had been made. Again, certain observations made by the learned Magistrate in his order of acquittal on the charges Under Section 136, Calcutta Port Act, have to be borne in mind. The following passage of the judgment is pertinent:
'I have perused the evidence, both oral and documentary, and I must at the very outset remark that I shall confine my observations to the charges under Section 136 of Act III of 1890 solely because the accused -is under orders of trial before the Sessions Court in connection with alleged delivery of excess raw materials from the Port Commissioners' Stores. Regarding this part of the story I find that I need not come to any conclusion, and hence I refrain from doing so.'
Now, so far as the present trial Is concerned, the allegation of delivery of excess raw materials is the very basis of the present commitment proceedings and as regards this allegation the learned Magistrate expressly refrain from coming to any conclusion In his previous judgment. It may be that in view of the order of acquittal it will not be open to the prosecution to take any step to challenge it in the impending Sessions trial, but that does not necessarily mean that the prosecution cannot be permitted to establish the charge of criminal breach of trust or abetment thereof by other evidence. If and when the prosecution seeks at the Sessions trial to adduce evidence which is not permissible according to law, it will be for the accused to raise objection at the appropriate time to the reception of such evidence and the trial Judge will decide then how much of the evidence is admissible, but there is no reason why the order of commitment of the petitioner under Section 408/109, I. P. C. should be quashed.
4. In the circumstances, therefore, this application for quashing the commitment proceedings must fail. The Rule is discharged accordingly.