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Jamini Kanta Ghose Vs. Bhabanath Jaisi Barman - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1939Cal273
AppellantJamini Kanta Ghose
RespondentBhabanath Jaisi Barman
Cases ReferredSubhag Ahir v. Emperor
Excerpt:
- .....was necessary before a prosecution could be started; (2) that it was improper to proceed with the trial until narazi petition was disposed of; and (3) that the sentence is unduly severe.2. i will deal with the third ground first. now we have been through the record, and we are satisfied that the case is a very serious one and there is no ground which would justify our interference with the sentence. there is ample authority in support of the first two grounds. if the former is established it will be fatal to the trial. in the latter case it would not always be necessary to order a retrial. in connexion with the first ground, i need only refer to the ease in brown v. ananda lal (1917) 4 a.i.r. cal. 596. there can be no doubt that the effect of this decision is that if the complainant.....
Judgment:

Henderson, J.

1. This is a rule calling upon the Deputy Commissioner Tejpur to show cause why the conviction of the petitioner under Section 211, I.P.C., should not be set aside. The relevant facts are as follows : The petitioner was given shelter for the night in the house of the prosecution witness Bhabanath. In course of the night, he attempted to take advantage of Bhabanath's wife. As a result of this he was beaten by Bhabanath. He then went to the Police Station and brought an entirely false charge of robbery against Bhabanath. The police reported the case to be a false one and prayed for the prosecution of the petitioner under Section 211, I.P.C. The Magistrate called upon the petitioner to show cause why he should not be prosecuted, and the petitioner then filed what is known as a narazi petition.' The case then proceeded to trial, and the petitioner was in due course convicted. His appeal to the Sessions Judge was unsuccessful. This rule was issued on three grounds : (1) that the sanction of the Magistrate who dealt with the narazi petition was necessary before a prosecution could be started; (2) that it was improper to proceed with the trial until narazi petition was disposed of; and (3) that the sentence is unduly severe.

2. I will deal with the third ground first. Now we have been through the record, and we are satisfied that the case is a very serious one and there is no ground which would justify our interference with the sentence. There is ample authority in support of the first two grounds. If the former is established it will be fatal to the trial. In the latter case it would not always be necessary to order a retrial. In connexion with the first ground, I need only refer to the ease in Brown v. Ananda Lal (1917) 4 A.I.R. Cal. 596. There can be no doubt that the effect of this decision is that if the complainant after the police submitted a final report, had filed a complaint before the Magistrate, sanction of that Magistrate would be necessary before he could be put upon his trial. But the present Case come within quite a different category. It is to be noticed that in the case dealt with by Sanderson G.J. and Walmsley J., there had been no prayer by the police for the prosecution of the petitioner. In the present case there was such a prayer, and the Magistrate actually took cognizance of the case before the petitioner appeared on the scene at all. In this connexion I should like to refer to the case reported in Superintendent and Remembrancer of Legal Affairs, Bengal v. Biswambher Brahmin : AIR1929Cal633 , where the matter is fully discussed. A similar view was taken by the Patna High Court in Subhag Ahir v. Emperor (1932) 19 A.I.R. Pat. 152. Though in this latter case these remarks are in the nature of an obiter dicta we agree with the reasoning of the learned Judges therein. The result is that both these grounds must fail.

3. It is also apparent that on the facts, there is nothing really to justify an argument that sanction would be necessary in any circumstances. The word 'narazi' is often loosely used, and it is necessary to examine the petition which is actually filed in any particular ease. We have done so and we have found that all that the petitioner did was to show cause against his prosecution. He asserted that the case was a true one, and that he was perfectly innocent. He never made a complaint against anybody or asked the Magistrate to investigate it. The learned Magistrate however overlooking the real nature of the petition examined the petitioner on oath and gave him an opportunity of proving his case. The petitioner made no attempt to avail himself of this opportunity; he never appeared and he never produced any witnesses. In these circumstances if the learned Magistrate was of opinion that the narazi petition was a petition of complaint, the only course which he could possibly take was to dismiss it under Section 203, Criminal P.C., It would therefore be perfectly idle to contend that the narazi petition had not been properly disposed of. We accordingly discharge the rule. The petitioner must surrender to his bail and serve out the remainder of his sentence.

Bartley, J.

4. I agree.


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