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Bejoy Krishna Pal Vs. Balai Chand Bhandari - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in48Ind.Cas.683
AppellantBejoy Krishna Pal
RespondentBalai Chand Bhandari
Excerpt:
criminal procedure code (act v of 1898), section 403(2) - complaint of offences under sections 352, 504, penal code--process under section 352--trial and acquittal of offence under section 352--fresh trial for offence under section 504, legality of. - .....that the charge of assault had not been made out. he, therefore, acquitted the petitioner of the offence punishable under that section. at the same time being of opinion that on the evidence adduced a prima facie case of an offence punishable under section 504, indian penal code, had been made out and believing also that process under that section not having been issued against the accused he could not then proceed to try him under that section, he directed that process should than issue directing the accused to appear and stand his trial under section 504.2. in the present rule it is contended that under the provisions of section 403(1) he cannot now be tried for that offence. we are unable to accede to that contention. no doubt the magistrate would have been better advised if, after.....
Judgment:

1. In this case it appears that one Balai Chand Bhandari brought a petition of complaint against the present petitioner, alleging that he had committee offences punishable under Sections 352 and 504, Indian Penal Code. Process was issued upon the petitioner directing him to appeal and take his trial only under Section 352 The case was tried summarily, and the petitioner was given to understand, and the Magistrate himself believed, that he was trying a charge merely of assault. Having heard the complainant and his witnesses he came to the conclusion that the charge of assault had not been made out. He, therefore, acquitted the petitioner of the offence punishable under that section. At the same time being of opinion that on the evidence adduced a prima facie case of an offence punishable under Section 504, Indian Penal Code, had been made out and believing also that process under that section not having been issued against the accused he could not then proceed to try him under that section, he directed that process should than issue directing the accused to appear and stand his trial under Section 504.

2. In the present Rule it is contended that under the provisions of Section 403(1) he cannot now be tried for that offence. We are unable to accede to that contention. No doubt the Magistrate would have been better advised if, after framing a charge under Section 501 and giving the accused a further opportunity of cross-examining the witnesses already examined, he had proceeded there and then to try this second charge. But the fact that he did not do this in no way alters the position of affairs. To a matter such as this Section 403 (2) is applicable, and having regard to the terms of the Magistrate's judgment it cannot be said that the petitioner has been tried and acquitted of the offence punishable under that section.

3. It is next contended that in view of what is said to be the great influence possessed by the Chairman of this Municipality whose subordinate the complainant is, the proceedings against the petitioner should be transferred from the station of Hooghly to the Court of some competent Magistrate either at Howrah or Serampore. We can see no reason to think that the influence possessed by the Chairman in question, if he does possess such influence, will be in any way energised to the prejudice of the petitioner, or that the Magistrates at Hooghly or anyone of them are in any degree subservient to him.

4. We, therefore, discharge this Rule.


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