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RajnaraIn Koonwar Vs. Lala Tamoli Raut - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal91
AppellantRajnaraIn Koonwar
RespondentLala Tamoli Raut
Excerpt:
joinder of charges - summons and warrant cases--criminal procedure code, sections 247 and 253. - .....and no order was made for a separate trial, it is plain that the mode of trial, under which the deputy magistrate ought to have proceeded, was that applicable to the greater of the two charges, that is, the case ought to have been tried as a warrant case. but what happened was this: the complainant being absent on a day to which the hearing of the case was adjourned, the deputy magistrate made an order purporting to be an order under section 247. an order under this section is, of course, an order of acquittal. what he ought to have done was to have made the order under section 253, not for acquittal, but for discharge. now, one or other of two things must be the case. either the deputy magistrate intended to take the proper procedure, and make order under section 253, although he.....
Judgment:

Wilson, J.

1. In this case two charges were made against the accused persons arising out of exactly the same state of facts and under the same circumstances. The one was a charge of voluntarily causing hurt which would be a summons case, and the other a charge of theft, which would be a warrant case. But inasmuch as the two charges were based upon exactly the same evidence, and the same circumstances, and no order was made for a separate trial, it is plain that the mode of trial, under which the Deputy Magistrate ought to have proceeded, was that applicable to the greater of the two charges, that is, the case ought to have been tried as a warrant case. But what happened was this: The complainant being absent on a day to which the hearing of the case was adjourned, the Deputy Magistrate made an order purporting to be an order under Section 247. An order under this section is, of course, an order of acquittal. What he ought to have done was to have made the order under Section 253, not for acquittal, but for discharge. Now, one or other of two things must be the case. Either the Deputy Magistrate intended to take the proper procedure, and make order under Section 253, although he mentioned Section 247. If that be so, then, perhaps, the order ought to be treated as one under Section 253; but in this case the order of the District Magistrate would be clearly right; or, on the other hand, the Deputy Magistrate did not intend to act under Section 253, but to proceed, as he says, under a. 247, and in that case he made an order which was clearly illegal. It may be that the District Magistrate had no authority to set aside that illegal order, but we have that authority; and the matter having been brought before us, we think it would be right to make the order which we have power to make, although, perhaps, the District Magistrate had not. That being so, it would be an idle form to interfere with the order made by the District Magistrate.


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