1. Two persons have been brought up before me for trial on various charges. Before the charges; could be read oat to the prisoners in the dock, learned Counsel for one of them, namely, Jitendra Nath Bose, submitted the following matters for my consideration. It appears that the prisoner, Jitendra Nath Bose, was indicted before this Court some time in December 1920, along with another person named Haridas Mullick, who is now the other prisoner in the dock. Haridas Mullick was then an absconder, and the the Advocate-General of Bengal, on behalf of the King-Emperor, informed this Court that he would not further prosecute the said Jitendra Nath Bose on the charges which had been framed, and lie prayed that, under Section 333 of the Code of Criminal Procedure, all further proceedings against the said Jitendra Nath Bose might be stayed upon the said charges. Thereupon the learned Judge, then presiding at the Criminal Sessions in this Court, passed an order to the effect that all proceedings on the said charges against the prisoner, Jitendra Nath Bose, should be stayed, and that he should be discharged of and from the same.
2. As regards the charges against the prisoner, Haridas Mullick, the case was adjourned Sine die. The prisoner Haridas Mullick, who, as I have said, was an absconder, has recently been arrested, and has been placed before me for trial along with the said Jitendra Nath Bose, a notice upon the latter having been served calling upon him to show cause why he should not be proceeded with on the charges which had been framed against him in December 1920. Learned Counsel for the prisoner, Jitendra Nath Bose, contends that the nolle prosequi, entered into by the learned Advocate-General in the matter of the charges against the said prisoner, had put an end to the particular indictment on which he had been brought up before the learned Judge in the Sessions Court in December 1920, and that, therefore, he cannot be proceeded against now on the same charges. In support of his contention he has drawn my attention to the cases of Queen v. Allen (1862) 31 L. J. M. C. 129; 1 B. & S. 850. and Queen v. Mitchel (1848) 3 Cox 93; 6 st. Tr. (N. S.) 545. He has also drawn my (sic)jention to the statement of the law in that well(sic)setiiown book 'Short and Mellor on Crown Practice' 2nd (sic)dition, 142. That this is the correct view is also (sic)orne out by the statement of the Law in 'Archhold on Criminal Pleading and Practice' 26th Edition, 125, and in Halsbury's 'Laws of England', Vol. IX, page 350.
3. Learned Counsel for the Crown states before me in unequivocal language that he cannot proceed on the indictment which was mentioned in Air. Advocate-General Gibbons' endorsement on the charge, but he contends that, inasmuch as the prisoner, Jitendra Nath Bose, has been brought before me, and inasmuch as the order under Section 333 of the Code of Criminal Procedure does not operate as an acquittal, I can even now investigate the charges which were framed against the prisoner, Jitendra Nath Bose, in December 1920 Learned Counsel for the Crown has failed to give me any authority in support of this proposition. He has referred me to Section 226 of the Code of Criminal Procedure, and Section 491 of the Code of Criminal Procedure, and Sections 23 and 24 of the Letters Patent of 1865. As I read these provisions, my powers are limited, and are not so wide as has been contended before me by learned Counsel for the Crown. If those powers were as wide as learned Counsel for the Crown has contended they were, I should have been intensely surprised at the novelty of the width of the powers, but as I have said, my powers are wholly limited by statute: and holding, as I do, that the nolle prosequi put an end to the particular indictment against the prisoner, Jitendra Nath Bose, which was before the Court in December 1920 (and the charge now before me against the prisoner, Jitendra Nath Bose, is the same charge as was before the Court an December 1920), I have no other alternative (sic) badirect that the present indictment against the prison(sic) Jitendra Nath Bose, cannot be proceeded with further and that he should be forthwith released.
3. The sureties for the prisoner, Jitendra Nath Bose are discharged.
4. Nothing that I have said herein will be construed as affecting in any way the legality or otherwise of any proceedings that may be taken hereafter by the Crown against Jitendra Nath Bose.