1. This is a Rule against the order of the Sessions Judge, Midnapore, dated 14-8-1954, by which he has ordered a further enquiry by a First Class Magistrate be made into the case under Section 395, I.P.C.
2. Briefly stated, the facts of the case are as follows. One Urmila Dassi lodged a First Information Report at the police station alleging that the petitioners, along' with several others, trespassed into the house of the complainant's husband, Ramanath, and demanded a sum of Rs. 500/- from Ramanath alleging that the petitioners were entitled to this amount as the costs of a litigation between Ramanath and the petitioners. Upon Ramanath's refusal to comply with the request, Ramanath was dragged and was assaulted with fists and slaps. 'On hearing the alarm raised by Ramanath, the informant Urmila came out of her house and saw the beating. The informant was also dragged outside by two of the petitioners, named, Sudhir and Ramesh Sudhir, assaulted her with a lathi, causing injuries on her person, while the other petitioner, Ramesh, snatched away her gold earring from her left ear, which resulted in the lobe of that ear being torn asunder.
It was further alleged that the informant's mother, Rohini Maity, also came upon the scene and she was also assaulted by the petitioner, Sudhir, with a lathi. On the intervention of some people of the locality, the petitioners decamped with the ornaments which they had snatched away. Thereafter, the injured persons were medically examined and a First Information Report was lodged on 23-12-1953, at 4.30 a. m. The Police alter the usual investigation submitted a final report against which the information Urmila Dassi filed a 'naraji' petition. A judicial enquiry was held, as a result of which the learned Magistrate recommended that all the petitioners might he summoned under Section 147 and that petitioners 1 and 5, Sudhir and Ramesh respectively, might he summoned under Section 323 and the petitioners, Sudhir, Ramesh, Bhusan and Giridhari, might be summoned under Section 379.
The petitioners were accordingly summoned to take their trial under the aforesaid sections and at the trial the prosecution examined eleven witnesses. Upon the evidence adduced by the prosecution, the trying Magistrate framed a charge under Section 147 against all the petitioners and a further charge under Section 379 against petitioners, Sudhir, Ramesh, Bhusan and Giridhari and further charges under Sections 323 and 325 against petitioners Sudhir and Ramesh. As a result of the trial, however, the learned Magistrate acquitted alt the accused, giving them the benefit of doubt. Against the order of acquittal, the complainant, Urmila Dassi, filed an application before the Sessions Judge for a reference to this Court' under Section 438, Criminal P. C. or for a further enquiry under Section 395, I. P. C. The learned Sessions Judge has not chosen to make a reference to this Court under Section 438, Criminal F. C., but has held that he has himself the power to direct a further enquiry into this case of the offence under Section 395, I. P. C. Against this order of the Sessions Judge, the petitioners have obtained this rule.
3. Mr. Dutta appearing in support of the rule has argued that in the facts of the present case, the learned Sessions Judge had no jurisdiction to make an order for further enquiry, because this order will have the effect of nullifying the order , of acquittal under Section 379, I. P. C. The learned Sessions Judge has referred to a large number of decisions of different High Courts on this point and he has come to the conclusion that in the circumstances of this case he has jurisdiction to make that order.
I am afraid I cannot agree with the learned Sessions Judge in the view that he has taken. In the present case, the offence of which the petitioners were acquitted was under Section 379, I. P. C. and the offence in respect of which a further enquiry had been directed is one under Section 395. There can be hardly any doubt that the offence under Section 379 is one of the essential ingredients of the higher offence under Section 395 and if the order of acquittal of the petitioners under Section 379 stands, there cannot be a further enquiry of the offence under Section 395 without taking away the effect of the order of acquittal under Section 379.
If the offence of which the accused are acquitted is a component part of the offence into which a further enquiry is directed, it seems to me that the Sessions Judge has no power to make the order of further enquiry, because he has no power to set aside the order of acquittal and the order of further enquiry will have the indirect effect of setting aside the order of acquittal. This was the view taken by this Court in the case of -- 'Baijnath Pandey v. Gauri Kanta Mandal', 20 Cal 633 (A).
In the case of -- 'Abdul Hakim v. Buzruk Ali' AIR 1918 Cal 943 (2) (B), Teunon J., expressed some doubts as to the correctness of the decision in the case of 20 Cal 633 (A), but he ultimately agreed with the order that was passed by Richardson, J., who was sitting with him. In the case of -- 'Satish Chandra v. Harimati Dasi', : AIR1954Cal393 , Das Gupta J., sitting with Debabrata Mookerjee, J., held that an acquittal under S, 447, I, P. C. does not debar the Sessions Judge from ordering a further enquiry under Sections 427 and 379, I. P. C..
In this case it is to be noticed that the offence in respect of which a further enquiry was directed were altogether independent of the offence of which the accused had been acquitted, because there is no common element between an offence under Section 447 and offences under Sections 427 and 379, I. P. C. It may be conceded that where the offence in respect of which a further enquiry is directed has no connection with the offence in respect of which the accused had been acquitted, the Sessions Judge may have a power to direct enquiry.
But where, as in the case before me, an offence in respect of which the accused had been acquitted is an essential part of the offence for which a further enquiry has been directed, I think it is beyond the power of the Sessions Judge to direct a further enquiry without thereby indirectly setting aside the order of acquittal. The same view has been taken by Harries C. J,, in the case of -- 'Yunus Shaikh v. The State', : AIR1953Cal567 . It may be noted that a recent Full Bench decision of the Allahabad High Court has taken the view that the Sessions Judge has no power to direct a further enquiry in a case of acquittal under any circumstances; (See tile case of -- 'Nahar Singh v. The State', : AIR1952All231 ) whereas a contrary view has been taken by a Full Bench decision of the Madras High Court in the case of --'In re, Nalla Baligadu', : AIR1951Mad0 .
It is, however, not necessary for me to go into this question for the purposes of the present case, because assuming that the Sessions Judge has the power to make an order of further enquiry in a case of acquittal in respect of an offence which is completely independent of the offence of which the accused had been acquitted, I cannot hold that he has the same power to direct a further enquiry where the offence, of which the accused has been acquitted, is an ingredient of the offence in respect of which a further enquiry is directed.
Mr. Basu appearing for the State has sought to argue that the offence of dacoity under Section 395 may be proved even without proving an offence of theft under Section 379 and he has relied upon the . definition of 'robbery' as given in Section 390, I. P. G., the opening line of which states that 'in all robbery there is either theft or extortion'. Therefore, according to Mr. Basu a robbery which is an essential ingredient of dacoity can be proved even without proving theft. The second and third paragraphs' of Section 390 however make it extremely doubtful whether robbery can be proved without proving theft.
In any case, having regard to the fact that upon the evidence adduced by the prosecution, the complainant chose to have a trial of the accused under Section 379, she cannot be permitted upon the same-facts to have a fresh trial of the accused of another offence of extortion. In this view of the matter, I have reached the conclusion that the order of further enquiry made by the learned Sessions Judge is without jurisdiction and must be set aside.
4. For the reasons given above, I make this Rule absolute and direct that the order made by the Sessions Judge must be set aside. It will, however, be open to the complainant to make a fresh application for reference under Section 438, Criminal P. C., if she is so advised.