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Nabani Nath Mukherjee and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1933Cal147
AppellantNabani Nath Mukherjee and anr.
RespondentEmperor
Cases ReferredSurendra Nath Jana v. Kumuda Charan
Excerpt:
- .....nabani. the case against prafulla ended in acquittal. the trying magistrate thereupon called upon nabani and aparnath to show cause why they should not bo proceeded against under section 211, i.p. c, and when they showed cause the magistrate, after considering the cause shown by them, decided to make a complaint under section 476, criminal p.c. nabani and aparnath thereupon came up to this court and filed the present appeal. the hearing of the appeal was stayed in view of the fact that nabani had filed a civil suit in the calcutta small cause court relating to the facts on which he had instituted the criminal case of cheating. the civil suit has ended in the dismissal of nabani's case.2. the order made by the learned magistrate under section 476 cannot in our opinion be maintained, in.....
Judgment:

Mallik, J.

1. This is an appeal under Section 476-B, Criminal P.C. It has arisen in this way: One Nabani Nath Mukerji brought a case of cheating under Section 417, I.P. C, against Prafulla Chandra Ghose. Nabani's brother Aparnath Mukherji was a witness for Nabani. The case against Prafulla ended in acquittal. The trying Magistrate thereupon called upon Nabani and Aparnath to show cause why they should not bo proceeded against under Section 211, I.P. C, and when they showed cause the Magistrate, after considering the cause shown by them, decided to make a complaint under Section 476, Criminal P.C. Nabani and Aparnath thereupon came up to this Court and filed the present appeal. The hearing of the appeal was stayed in view of the fact that Nabani had filed a civil suit in the Calcutta Small Cause Court relating to the facts on which he had instituted the criminal case of cheating. The civil suit has ended in the dismissal of Nabani's case.

2. The order made by the learned Magistrate under Section 476 cannot in our opinion be maintained, in the order made by him the learned Magistrate nowhere found that it was expedient in the interest of justice that an inquiry should be made into the offence under Section 211, I.P.C. It has been held in the case of Keramat Ali v. Emperor : AIR1928Cal862 , as also in the case of Surendra Nath Jana v. Kumuda Charan AIR 1980 Cal 352 that it is only when a Court is expressly of opinion that it is expedient in the interest of justice that an inquiry should be made that an order under Section 476 can be made. As there was no such express finding in the present case the order of the Magistrate under Section 47G must be vacated. The appeal is accordingly allowed and the appellants will he discharged from the bail-bonds.

Remfry, J.

3. I agree.


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