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W.B. Colville and ors. Vs. Kristo Kishore Bose - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal746
AppellantW.B. Colville and ors.
RespondentKristo Kishore Bose
Excerpt:
revision - high court's power of revision--presidency magistrate, proceedings of--order for further inquiry--criminal procedure code (v of 1898), sections 423, 435 and 439--letters patent, high court, 1865, clause 28. - ghose and wilkins, jj.1. this rule was issued upon the presidency magistrate of calcutta to show use why his order discharging the accused should not be set aside in order it may be considered whether this court has not, under section 15 of the after act, power to order a further inquiry or otherwise deal with the after as it may appear proper.' as we understand this rule, it was granted or a double purpose, first, for the purpose of determining whether the order of discharge made by the presidency magistrate should not be set aside, and secondly, that it may be considered at the same time whether this court has not, under section 15 of the charter act, power to order a further inquiry into the matter. so far as the first mentioned purpose is concerned, it seems to us, upon examining the.....
Judgment:

Ghose and Wilkins, JJ.

1. This rule was issued upon the Presidency Magistrate of Calcutta to show use why his order discharging the accused should not be set aside in order it may be considered whether this Court has not, under Section 15 of the after Act, power to order a further inquiry or otherwise deal with the after as it may appear proper.' As we understand this rule, it was granted or a double purpose, first, for the purpose of determining whether the order of discharge made by the Presidency Magistrate should not be set aside, and secondly, that it may be considered at the same time whether this Court has not, under Section 15 of the Charter Act, power to order a further inquiry into the matter. So far as the first mentioned purpose is concerned, it seems to us, upon examining the judgment of the Presidency Magistrate, and after hearing Mr. Garth in support of the rule, nobody appearing on the other side to show cause, that the Presidency Magistrate has not dealt with the matter before him in the way in which he should have dealt with it. He seems to have thrown out, in the course of his judgment, that he has no jurisdiction to take cognizance of the complaint, because the offence, if any, was committed at Shalimar within the jurisdiction of the District Magistrate of Howrah. But it appears to us that the monies having been received from the complainants' firm at Calcutta, and the false accounts, as stated by the complainants, having been rendered in Calcutta, the Presidency Magistrate had jurisdiction to take cognizance of the complaint in question. The Magistrate ha3 in this connection referred to the evidence of one Mr. Morse as showing that the accounts used to be sent to Kidderpore and the money drawn from that place. But, as we understand it, the transactions out of which this particular complaint has arisen are transactions which took place subsequent to the time of Mr. Morse and, therefore, are not affected by the evidence that was given by that gentleman.

2. Then, as regards the grounds upon which the Magistrate holds that no prima facie case has been made out, we are of opinion that officer has misguided himself. He seems to have been under the impression as if the main (if not the whole) question before him was whether the accused was justified in paying the coolies at higher rates than the rates at which the complainant says they ought to have paid. But, according to the case for the prosecution, as laid before us, there were no payments made by the accused at all to many of the coolies; and it is further alleged that the accused, having made certain false entries in the shape of payments made to the coolies, and having submitted his accounts at the head office in Calcutta, drew further sums of money from that office and, in that way, cheated the complainants' firm of a considerable sum of money. It seems to us that this part of the case has not been, as it ought to have been, gone into by the Presidency Magistrate; and that this ought to be now done. It follows, therefore, that the order of discharge is erroneous, and should be set aside.

3. As regards the other purpose for which the rule was granted, it seems to us that, under Sections 435 and 439 read with Section 423 of the Code of Criminal Procedure, this Court has the power to revise the proceedings of the Presidency Magistrate, he being subject to the Appellate jurisdiction of this Court. But beyond this, on referring to Clause 28 of the Letters Patent bearing date the 28th December 1865, it appears that this Court has the power to revise the proceedings of the Criminal Courts subject to its Appellate juris diction. The Courts of the Presidency Magistrates are subject to our Appellate jurisdiction; and it follows, therefore, that this Court has the authority to revise the proceedings now before us under the said clause of the Letters Patent, not Section 15 of the Charter Act, mentioned in the rule, which was obviously a mistake for Clause 28 of the Letters Patent. With these remarks the rule is made absolute, the order of the Presidency Magistrate being set aside, and a further inquiry being directed into the complaint instituted. We further direct that the trial of this case should be held by the Chief Preside Magistrate. Let the records be sent down to his Court.


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