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Gaziram Bania Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1947Cal40
AppellantGaziram Bania
RespondentEmperor
Excerpt:
- .....witness 1 searched the house of the petitioner in the expectation that he would find certain stolen property there. he was disappointed and there proceeded to seize practically everything in the petitioner's house. the prosecution were so hardput to make out a ease that they had to put forward evidence to the effect that some plates and dishes were dirty as proof that there was reason to believe that they were stolen.3. not only was there no justification for this conviction; there was never any justification for putting the petitioner on his trial. the rule is made absolute. the conviction and sentence are set aside and the fine if paid, will be refunded. the order of the magistrate that the articles seized will be sold and forfeited to the crown is also set aside and i direct.....
Judgment:
ORDER

Henderson, J.

1. This is a Rule calling upon the District Magistrate of 24 parganas to show cause why the conviction of the petitioner under Section 33A of Act II of 1866 should not be set aside. There seems to be a certain amount of misunderstanding in connection with this matter. The learned Magistrate in his judgment said that the only point for determination was whether there is reason to believe that the properties are stolen and the accused has failed to account for his possession of the properties. There are of course two things to be proved: first of all the prosecution must satisfy the Magistrate that there is reason to believe that the property has been stolen. If the prosecution establish this the accused must account for his possession to the satisfaction of the Magistrate.

2. Here the only thing found is that the explanation of the accused was unsatisfactory. This is obviously insufficient. It is not, however, surprising because I have been through the evidence and there was absolutely none to justify any finding that there is reason to believe that the property was stolen. The plain fact of the matter is that prosecution witness 1 searched the house of the petitioner in the expectation that he would find certain stolen property there. He was disappointed and there proceeded to seize practically everything in the petitioner's house. The prosecution were so hardput to make out a ease that they had to put forward evidence to the effect that some plates and dishes were dirty as proof that there was reason to believe that they were stolen.

3. Not only was there no justification for this conviction; there was never any justification for putting the petitioner on his trial. The rule is made absolute. The conviction and sentence are set aside and the fine if paid, will be refunded. The order of the Magistrate that the articles seized will be sold and forfeited to the Crown is also set aside and I direct that they be returned to the petitioner.


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