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Charoobala Dabee Vs. Barendra Nath Mozumdar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal126
AppellantCharoobala Dabee
RespondentBarendra Nath Mozumdar
Cases ReferredOpoorba Kumar Sett v. Probod Kumary Dassi
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, 439--charter act (24 and 25 vict., c. 104), section 15--letters patent, high court, 1865, clause 15. - .....magistrates, not by presidency magistrates, can be exercised by the high court in exercise of its powers of revision under the code of criminal procedure, and sections 439, 435 and 423 of the code have been referred to as authority for this. we do not agree in this view. section 435 enables certain judicial officers to send for records of subordinate courts for the purpose of satisfying themselves as to the correctness, legality or propriety of such proceedings. but it confers no powers in regard to the correction of errors so found. and although it may be conceded that the proceedings of a presidency magistrate, in which an order of dismissal or discharge may have been passed, may be thus sent for, unless some power, to act in revision be conferred, although errors may be pointed out.....
Judgment:

Prinsep and Hill, JJ.

1. In this case the Presidency Magistrate discharged the accused, and a rule was granted to show cause why an order directing further inquiry should not be passed. When that rule was made, there was some uncertainty in regard to the powers of the High Court in this respect, because Section 437 of the Code of Criminal Procedure, which empowers this Court to make an order for further inquiry, is not made applicable to proceedings before a Presidency Magistrate. There was also another rule to the same purport, which had been granted by the same Bench, of which I was a member, and, under the terms of that rule, it was expressly stated that it would be considered whether this Court has not under Section 15 of the Charter Act powers to pass such an order. The rule in that case has been heard and dealt with by another Bench of this Court, who have held that such power is given to the High Court as a Court of Revision under Section 439 read with Sections 425 and 423. In cases which have come before me as a member of another Bench, I have expressed my opinion that such a power is not given to this Court as a Court of Revision in respect of an order of discharge passed by a Presidency Magistrate, and, as I do not approve of the judgment in that case, and my brother Hill shares that opinion, it is necessary that I should state the ground upon which we do not agree with it.

2. Section 437 expressly gives to the High Court, the Sessions Judge and the District Magistrate power to order a Magistrate to make a further inquiry, but it does not refer to the proceedings before a Presidency Magistrate. The Code of Criminal Procedure throughout draws a distinction between Presidency Magistrates and other Magistrates, and expressly refers to Presidency Magistrates wherever it relates to proceedings before them. The fact that this power is expressly given in respect of proceedings before other Magistrates, while there is no provision made in respect of proceedings before Presidency Magistrates, seems to show that the Legislature did not intend to deal with orders of discharge passed by Presidency Magistrates. But it has been held that the powers expressly conferred on the High Court and other Courts by Section 437 in respect of orders of discharge passed by Magistrates, not by Presidency Magistrates, can be exercised by the High Court in exercise of its powers of revision under the Code of Criminal Procedure, and Sections 439, 435 and 423 of the Code have been referred to as authority for this. We do not agree in this view. Section 435 enables certain judicial officers to send for records of subordinate Courts for the purpose of satisfying themselves as to the correctness, legality or propriety of such proceedings. But it confers no powers in regard to the correction of errors so found. And although it may be conceded that the proceedings of a Presidency Magistrate, in which an order of dismissal or discharge may have been passed, may be thus sent for, unless some power, to act in revision be Conferred, although errors may be pointed out for future guidance, nothing further could be done. Powers of revision are, however, expressly given by other sections. Section 439 confers on the High Court as a Court of Revision all the powers of an Appellate Court under Section 423. But Section 423 does not enable a Court of Appeal to direct that further inquiry be made into a case in which an order of discharge or dismissal may have been passed. Section 423 confers a power to direct further inquiry only in respect of a case of an appeal from an order of acquittal, and that this power is so limited is shown by an express enactment in Section 437 to provide for such orders being passed.

4. Under such circumstances we are not disposed to agree with the view expressed by another Bench of this Court in the case of Colville v. Kristo Kishore Bose (1899) I.L.R., 26 Cal., 746, in respect to the application of the Code of Criminal Procedure. That was a case of a rule granted by a Bench of which I was a member, and it was expressly stated that it would be considered whether this Court could exercise the power in question under Section 15 of the Charter Act. The learned Judges before whom that rule was argued have apparently misread that order, and have considered that reference was made to Section 15 of the Charter, that is of the Letters Patent, whereas it expressly referred to Section 15 of the Charter Act, and therefore acting under this misapprehension the Judges considered that there was some mistake in the order, and that the reference should have been properly made to Section 28 of the Letters Patent. In the view which we take regarding the application of Section 28 of the Letters Patent, we are not inclined to agree with the learned Judges that section in any way applies to a case such as the present, and we are not aware that there is any authority for this. But, dealing with this rule as it has been argued before us, and as it was intended that it should be argued by the note made when the rule was granted, we think that this Court has powers of revision in respect of an order of discharge passed by a Presidency Magistrate by reason of section ]5 of the Charter Act. That section has always been interpreted in a very extended meaning so as to give ample powers of superintendence, that is to say, powers of revision over proceedings of subordinate Courts, and we may refer as a case in which a similar opinion was expressed to the case of Opoorba Kumar Sett v. Probod Kumary Dassi (1893) 1 C.W.N., 49. 'We, therefore, hold that in such a case as that now before us the Court can act as a Court of Revision under Section 15 of the Charter Act, and therefore, although not on the grounds stated in the rule to which reference has been made, we come to the same conclusion as was then arrived at. It is consequently unnecessary to refer this difference of opinion to a Pull Bench. On the merits of this case, the rule should, in our opinion, be made absolute. The Presidency Magistrate, acting under Section 203, has dismissed this complaint on the report of the police, but he has done so without examining the complainant and without finding on the examination of the complainant that there is no sufficient ground for proceeding. There will, therefore, be a further inquiry made into the matter of the complaint.


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