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Mahammed HossaIn and ors. Vs. Bholanath Das - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1936Cal224
AppellantMahammed HossaIn and ors.
RespondentBholanath Das
Excerpt:
- .....after the acquittal on appeal in that case, this prosecution has been launched against two persons mahammed hossain and bulu khan along with four other persons apparently on the same facts.2. the ground upon which this application was made is that these proceedings are an abuse of the process of the court, inasmuch as on the final finding in the appeal in this case, the facts on which this prosecution is based being the same, there could be no offence under section 498. we find from the record that these two persons mahommed hossain and bulu khan, during the proceedings in the previous case, were for six months in jail as undertrial prisoners and subsequently served two months' sentence before they were finally acquitted. there can be no doubt that this prosecution has been.....
Judgment:

Jack, J.

1. This was a Rule calling upon the District Magistrate of Birbhum and upon Bholanath Das, the complainant opposite party to show cause why proceeding under Sub-section 497 and 498, I. P. C., should not be quashed, or, in the alternative, the case should not be transferred from the Court of Mr. I yengar to the Court of some Magistrate outside Rampurhat. Two of the petitioners were originally tried for kidnapping under Section 366 and were acquitted on appeal to the Court, on the grounds that the girl in question went of her own accord to the house of the accused and that there was no taking or sending. After the acquittal on appeal in that case, this prosecution has been launched against two persons Mahammed Hossain and Bulu Khan along with four other persons apparently on the same facts.

2. The ground upon which this application was made is that these proceedings are an abuse of the process of the Court, inasmuch as on the final finding in the appeal in this case, the facts on which this prosecution is based being the same, there could be no offence under Section 498. We find from the record that these two persons Mahommed Hossain and Bulu Khan, during the proceedings in the previous case, were for six months in jail as undertrial prisoners and subsequently served two months' sentence before they were finally acquitted. There can be no doubt that this prosecution has been undertaken, in order to endeavour to defeat the effect of the previous acquittal. The facts on which it is founded, are the same. It is urged that now that the girl is free and not under the influence of the other side, she will make statements which will support the prosecution case whereas her statements made in the previous trial went against the prosecution. We find that in the meantime she has been prosecuted under Section 193 for giving false evidence in that connexion and it is not likely that much reliance can be placed upon her testimony. There might be something to be said on behalf of the prosecution as against the petitioner Mahomed Hossain who is the only one proceeded against under Section 497. But inasmuch as he has been already in jail for eight months on account of this occurrence, we think that if any offence has been committed, he has already been sufficiently punished. Moreover there has been a very great delay in prosecuting him. If the husband really intended to prosecute Mahommed Hossain for adultery, he should not have waited ten months to bring the complaint. The husband, in fact, was a witness in the first case and if he had made a complaint at the time, these charges could have been made then. In these circumstances, we are of opinion that these proceedings are an abuse of the process of the Court. We therefore think that this is a case in which the proceedings ought to be quashed under the provisions of Section 561-A, Criminal P. C. We would accordingly make the Rule absolute, quash the proceedings and direct that the accused petitioners be forthwith discharged from their bail bonds.

Lort-Williams, J.

3. I agree.


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