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Bhola Nath Nandi and anr. Vs. Kedar Nandi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1925Cal353
AppellantBhola Nath Nandi and anr.
RespondentKedar Nandi
Cases ReferredBabbon Shaikh v. Emperor
Excerpt:
- .....it appears from the order-shoot that the magistrate notified the parties that he would hold a local inspection of the place of the occurrence on the 12th of august and we are told, and it is not disputed, that when the magistrate visited the locality on the 12th the parties were there. after the magistrate had made his local inspection he gave judgment on the 16th of august convicting the accused as we have already stated. after he had delivered his judgment he made a note in the order sheet regarding the result of his inspection. it is urged on behalf of the accused that they have been prejudiced by what the magistrate has done and it is said that if he had recorded the result of his inspection before delivering the judgment they might either by evidence or by argument have.....
Judgment:

1. The two petitioners before us have been convicted under the provisions of Section 323 of the I.P.C. and have been sentenced to pay a fine of Rs. 45 each. The ground urged before us in support of the Rule is as follows. On the 10th of August, 1923, the evidence was closed and the case was adjourned for judgment to the l6th of August). It appears from the order-shoot that the Magistrate notified the parties that he would hold a local inspection of the place of the occurrence on the 12th of August and we are told, and it is not disputed, that when the Magistrate visited the locality on the 12th the parties were there. After the Magistrate had made his local inspection he gave judgment on the 16th of August convicting the accused as we have already stated. After he had delivered his judgment he made a note in the order sheet regarding the result of his inspection. It is urged on behalf of the accused that they have been prejudiced by what the Magistrate has done and it is said that if he had recorded the result of his inspection before delivering the judgment they might either by evidence or by argument have displaced the conclusion which it is said the Magistrate formed as the result of the local inspection which he held and reliance was placed upon the decision in Babbon Shaikh v. Emperor [1910] 37 Cal. 340 to which we have referred. On behalf of the complainant it is urged, firstly, that the local inspection was unnecessary and, secondly, that there has been no prejudice.

2. The first point does not seem to us to be a substantial one. The local inspection was in fact held find the mere fact that it was net necessary cannot affect the question urged by the first petitioner that the Magistrate was influenced in his decision by what he saw there.

3. The second point urged seems to have more substance. It appears that there were upon the record, Exhibit (1) Settlement papers, and Exhibit (2) Settlement map and we are told and it is not disputed that the Settlement papers show that all the plots had a right of irrigation from the tank which caused the dispute. Then it appears also from the judgment of the Magistrate that there was oral evidence both of the prosecution and of the defence that the complainant had irrigated his land from the tank before the date of the occurrence. It would thus appear that there was evidence, both oral and documentary, to support the conviction of the accused, but what is stated is this that from the passage in the judgment in which the Magistrate referred to his personal visit to the tank it is clear that he was influenced in his decision by what he saw at the locality and it is urged, as we have already stated, that if the accused had known what was passing in the Magistrate's mind they might have displaced his views either by evidence or by arguments. Now we have carefully considered the matter and the judgment of the Magistrate and the conclusion we have come to is that the Magistrate's decision is merely based on the documents on the record and on the oral evidence before him and that he has only used the local inspection to confirm this evidence which he had already before him. In the circumstances, we do not think that the accused have been prejudiced by what, we think, was the irregular course which the Magistrate adopted. He certainly should, after the inspection, have recorded the result thereof and asked the parties if they desired to adduce evidence and he should have heard any arguments which they might have advanced on what he had recorded. But inasmuch as there has been no prejudice to the accused by the order passed we do not think that we should interfere with the conviction in this case.

4. The rule is accordingly discharged.


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