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Sm. Prafulla Nalini Ghose and anr. Vs. the State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 95 of 1952
Judge
Reported inAIR1953Cal560,57CWN116
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 439
AppellantSm. Prafulla Nalini Ghose and anr.
RespondentThe State and anr.
Appellant AdvocatePrafulla Kumar Roy and ;Hemesh Chandra Sen, Advs.
Respondent AdvocateN.K. Basu, ;S.C. Talukdar, ;R. Chowdhury and ;N.R. Biswas, Advs.
Excerpt:
- orderp.n. mookerjee, j. 1. this rule is directed against an order passed by a learned magistrate, 1st class, sealdah, on 27-10-1951, convicting the two petitioners under sections 453 and 341, i. p. c., and sentencing each to a flue of rs. 30/- in default to s. i. for 15 days under section 453, i. p. c., and directing also restoration of possession under sections 522, criminal p. c. there being, however, no separate sentence passed under section 341, i. p. c.2. a motion for reference of the case to this court was eventually rejected by the learned addl. sessions judge on 21-1-1952 and thereafter on 28-1-1952 the present rule was obtained by the two accused.3. the case had a chequered career. in the petition of complaint which was filed on 17-11-1949, process was prayed for under sections.....
Judgment:
ORDER

P.N. Mookerjee, J.

1. This Rule is directed against an order passed by a learned Magistrate, 1st class, Sealdah, on 27-10-1951, convicting the two petitioners under Sections 453 and 341, I. P. C., and sentencing each to a flue of Rs. 30/- in default to S. I. for 15 days under Section 453, I. P. C., and directing also restoration of possession under Sections 522, Criminal P. C. there being, however, no separate sentence passed under Section 341, I. P. C.

2. A motion for reference of the case to this Court was eventually rejected by the learned Addl. Sessions Judge on 21-1-1952 and thereafter on 28-1-1952 the present Rule was obtained by the two accused.

3. The case had a chequered career. In the petition of complaint which was filed on 17-11-1949, process was prayed for under Sections 448/341/506/426/427, I. P. C., and such process was sought not only against the two petitioners who are husband and wife but also against their three sons and two daughters and two other persons, Priya Ranjan Das Gupta and Madan Gopal Mitter. The learned Police Magistrate issued process only against the two petitioners and Priya Ranjan Das Gupta and Madan Gopal Mitter. Later on, on 6-5-1950, the case against the two last named persons was ordered to be 'filed for the present' and 1he case against the two petitioners was transferred to Sri S.D. Banerjee, Hony. Magistrate, for disposal. Before this learned Hony. Magistrate the case proceeded for over nine months' when the term of this learned Magistrate having expired the case was withdrawn, by an order of the learned Additional District Magistrate, passed on 12-2-1951, to the latter's file and transferred to Sri B. B. Mazumdar, Magistrate, 1st Class, Sealdah, for disposal. Thereafter, on the prayer of the accused the case was tried de novo and evidence was taken from 21-3-1951 till 1-10-1951. Arguments were concluded on 3-10-1951 and the learned Magistrate delivered judgment on 27-10-1951, convicting and sentencing the petitioners and directing restoration of possession as aforesaid.

4. In my opinion, the petitioner's conviction cannot stand. I am not impressed by the argument of the learned Advocate for the petitioners that, even if the prosecution evidence be fully believed, this was at best a case of civil trespass and no conviction could be made for any criminal offence as the petitioners' dominant intent was not 'to insult, intimidate or annoy'. The case of -- 'Sinnaswamy Sal-vanayagarn v. The King', 55 Cal WN 1 (PC) (A), cited by the petitioners' learned Advocate in support of this argument, would Be of no help to the petitioners if the prosecution story be accepted as correct. I am bound, therefore, to reject this argument, advanced in support of the Rule.

5. On the facts, however, I have not been able to persuade myself that the prosecution case has been proved beyond reasonable doubt. It is true that the learned Magistrate has apparently believed the prosecution evidence and accepted the prosecution case. It is true also that this Court, sitting in revision, should not ordinarily interfere with the trial Court's appreciation and appraisement of evidence. But, even then, when certain broad and inalienable features are overlooked or do not appear to have received any or proper or sufficient consideration and conviction is made on conclusions reached without paying attention -- or, at any rate proper or sufficient attention -- to such features or irreconcilable with the same, such conviction ought not to be allowed to stand, although the matter comes up to this Court not in appeal but in revision only because, to the accused's misfortune, a non-appealable sentence is passed by the learned trying Magistrate. That is what has happened in the present case and I feel, therefore, bound in the interest of fairness and justice, to set aside the petitioner's conviction and sentence and all consequential orders, passed by the learned trying Magistrate.

6-8. (His Lordship went through the evidence and concluded:)

9. In the above state of things I amunable to accept -- and I do not also feelbound to accept -- the finding of the learnedtrying Magistrate that the prosecution case hasbeen sufficiently proved to justify a convictionof the petitioners under Sections 453 and 341,I. P. C. I, therefore, make this Rule absolute,set aside the orders of conviction and the sentences, passed upon the petitioners, as also theorder for restoration, passed under Sections 522,Criminal P. C., and direct that the petitionersbe acquitted. The fines, if already paid, areordered to be refunded.


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