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Fazarbi Bibi Vs. Moonsab Molla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.823
AppellantFazarbi Bibi
RespondentMoonsab Molla
Cases ReferredHari Dass Sanyal v. Saritullah
Excerpt:
criminal procedure code (act v of 1898), sections 203, 437 - dismissal of complaint--further inquiry, order directing--notice to accused, whether necessary. - .....the petitioner.2. the learned vakil who supported the rule has admitted that the order made by the learned district magistrate under section 437 was not without jurisdiction by reason of the fact that notice had not been given; but he urged that as a matter of discretion the district magistrate ought to have directed notice to the petitioner. in my judgment this matter has been settled in the full bench case of hari dass sanyal v. saritullah 15 c. 608 at p. 624 (f.b.) : 13 ind. jur. 55 : 7 ind. dec. (n.s.) 988. the learned chief justice at the end of his judgment said: 'i think notice is not required by the law, but that, except in cases of dismissal under section ' 203, notice should be given.' therefore, he was of opinion that in cases of dismissal under section 203 notice was not.....
Judgment:

Sanderson, C.J.

1. In this case the Rule has been supported upon three grounds: first, that the District Magistrate, when he made an order setting aside the order of dismissal which had been made by the Honorary Magistrate and directed the Rural Magistrate to proceed with the case after summoning the accused, ought not to have made such an order without giving notice to the petitioner.

2. The learned Vakil who supported the Rule has admitted that the order made by the learned District Magistrate under Section 437 was not without jurisdiction by reason of the fact that notice had not been given; but he urged that as a matter of discretion the District Magistrate ought to have directed notice to the petitioner. In my judgment this matter has been settled in the Full Bench case of Hari Dass Sanyal v. Saritullah 15 C. 608 at p. 624 (F.B.) : 13 Ind. Jur. 55 : 7 Ind. Dec. (N.S.) 988. The learned Chief Justice at the end of his judgment said: 'I think notice is not required by the law, but that, except in cases of dismissal under section ' 203, notice should be given.' Therefore, he was of opinion that in cases of dismissal under Section 203 notice was not necessary. Mr. Justice Wilson (with whom four other learned Judges agreed) said: 'As to the third question I agree with Prinsep. J.' Mr. Justice Prinsep said: 'With respect to the third question submitted to us, I am of opinion that, under the law, no notice to the accused is necessary before an order 'under Section 437 may be passed.' It is hardly necessary to say that Section 437 applies both to the case of an order of discharge and to an order of dismissal. He goes on to say: 'A notice certainly would not be necessary before an order to set aside an order of dismissal under Section 203 could be passed, since that order was not passed with a notice to the accused person, or in his presence and, therefore, is probably unknown to him.' Therefore, the first point which has been taken by the learned Vakil for the petitioner is not a good point.

3. The second ground on which the learned Vakil felied was that although under Section 437 of the Criminal Procedure Code, the District Magistrate had power to direct a further enquiry into the complaint which had been dismissed under Section 203, the District Magistrate in this case has gone beyond his power conferred by that section, inasmuch as he cot only set aside the order of dismissal but directed the Rural Magistrate to proceed with the case after summoning the accused. He urged that that was an order which was not an order merely directing a further enquiry. It was, therefore, without jurisdiction. It is not necessary, in my judgment, to express any opinion upon this point on this occasion, for, in my judgment, the third ground upon which the learned Vakil relied is a sufficient ground to support this Rule, namely, that having regard to the judgment which was delivered by the Honorary Magistrate who dismissed the case, the learned District Magistrate ought not to have interfered with it. It was evidently a considered judgment by the Honorary Magistrate, who is a Muhammadan and who had gone into the case fully, who had seen the witnesses and who had come to the conclusion that the complaint could not be substantiated by the evidence which was before him. The District Magistrate, as I gather from his judgment, confined his enquiry to reading the judgment and hearing the Pleader ; the record, which is before us, is as follows: 'Read judgment and heard Pleader. I am not satisfied that the evidence is connected.' Under these circumstances, in my judgment, no good ground has been shown for the District Magistrate's interference with the decision which had been arrived at, under the circumstances to which I have referred, by the Honorary Magistrate.

4. For there reasons, in my judgment, the Rule should be made absolute and the order of the District Magistrate set aside.

Walmsley, J.

5. I agree.


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