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Bharasa Now Vs. Sukhdeo and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in97Ind.Cas.62
AppellantBharasa Now
RespondentSukhdeo and ors.
Cases ReferredHari Dass Sanyal v. Saritulla
Excerpt:
cr.p.c. (act v of 1898), sections 422, 435, 545 - accused, appeal by--compensation awarded to complainant-notice of appeal to complainant--notice to public prosecutor. - .....rs. 50 should be paid, to the complainant as costs and compensation under section 545, cr.p.c. the accused appealed to the additional district magistrate who without issuing notice upon, the complainant or upon the public prosecutor heard the appeal ex parte and set aside the conviction and acquitted the accused. the present rule was obtained from this court on the ground that the order of acquittal passed by the court below should be set aside on the ground that the additional district magistrate acted illegally and without jurisdiction in not issuing a notice on the complainant.2. under section 422, cr.p.c., the appellate court shall cause notice to he given to the appellant and to the crown of the time when the appeal will be heard and under section 423 the appellate court shall after.....
Judgment:

Suhrawardy, J.

1. There were three persons accused in this case who were convicted by the Sub-Deputy Magistrate of Alipore under Section 323, Indian Penal Code, and the first accused was sentenced to a fine of Rs. 30 and the two other accused were sentenced to a fine of Rs. 25 each. It was further ordered that out of the fine, if realised, Rs. 50 should be paid, to the complainant as costs and compensation under Section 545, Cr.P.C. The accused appealed to the Additional District Magistrate who without issuing notice upon, the complainant or upon the public prosecutor heard the appeal ex parte and set aside the conviction and acquitted the accused. The present Rule was obtained from this Court on the ground that the order of acquittal passed by the Court below should be set aside on the ground that the Additional District Magistrate acted illegally and without jurisdiction in not issuing a notice on the complainant.

2. Under Section 422, Cr.P.C., the Appellate Court shall cause notice to he given to the appellant and to the Crown of the time when the appeal will be heard and under Section 423 the Appellate Court shall after hearing the appellant and the Public Prosecutor, if he, appears, pass further orders in the appeal. There is no provision, therefore, in law that a notice must issue upon the complainant when an appeal is filed in a criminal case. It cannot, therefore, he said that the Additional District Magistrate acted illegally or without jurisdiction in not issuing notice upon the complainant. But it is argued that as a matter of sound judicial discretion notice ought to he given to the complainant in a case where compensation has been awarded to him by the trial Court. There is a great deal of force in this contention. There is no decided case on this point but there are cases under the analogous provision contained in Section 250, Cr.P.C. See the cases of Emperor v. Palaniappavelan 29 M. 187 : 3 Cr. L.J. 455, Ambakkagari Nagi Reddi v. Basappa 1 Ind. Cas. 79 : 33 M. 89 : 5 M.L.T. 202 : 19 M.L.J. 130 : 9 Cr. L.J. 150 and Venkatarama Aiyar v. Krishna Aiyar 27 Ind. Cas. 192 : 38 M. 1091 : 2 L.W. 200 : 28 M.L.J. 204 : (1915) M.W.N. 181 : 16 Cr. L.J. 128 : 17 M.L.T. 164. There is no provision in law either for a notice on the accused of an appeal by the complainant against an order under Section 250, Cr.P.C., but the Courts have held in exercise of their judicial discretion that the accused should be heard in such a case. The question as to the propriety of issuing a notice on a party who is affected by an order of the Court was raised before the present Act came into force with reference to a case where further enquiry was ordered by the Revisional Court. There was nothing in the old Code to make it incumbent upon the Court to issue a notice on the accused before passing an. order under Section 437 of the old Code for further inquiry. But as a matter of practice notice used to be issued in cases where the accused was discharged after hearing. The matter was considered by a Full Bench of this Court in the case of Hari Dass Sanyal v. Saritulla 15 C. 608 : 13 Ind. Jur. 55 : 7 Ind. Dec. (N.S.) 981 : (F.B.) where Prinsep, J., one of the Judges constituting the Full Bench observed as follows: 'It is, no doubt, an ordinary rule of our Courts that no order shall be passed to a man's prejudice without due notice to him, and as a principle the necessity is obvious. Still I find myself unable to say that, as the law stands, the fact that a man has not been served with a notice necessarily affects the legality of an order under Section 437. Section 440 makes it optional with any Court when exercising its power of revision to hear any party either personally or by Pleader, and this again seems to favour the view that the Legislature did not intend that a notice should be indispensable. At the same time I am of opinion that no Court would be exercising a proper discretion in such a matter if, before proceeding under Section 437 to order a further inquiry in a case in which the accused person may have been discharged, it did not first give him an opportunity, by service of notice, to show cause against such an order being made.' This principle has been recognised by the Legislature in amending Section 437, which is Section 436 of the new Code, by adding to it a proviso to the effect that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. Though there is no express provision of law in case of an order under Section 250 or 545, Cr.P.C., with regard to notice upon the opposite party, one of the fundamental principles of law is that no order should be passed to the detriment or prejudice of a party without giving him an opportunity of being heard in defence. Acting on this principle, I think that it would have been in exercise of proper discretion by the lower Appellate Court to give notice to the complainant of the hearing of the appeal. In the present case the further fact is that no notice was given to the Crown as provided by Section 422 Cr.P.C. It is the settled practice of this Court in a case where compensation has beer awarded to the complainant, in issuing a Rule to direct service of notice upon the complainant as well. In this view I think that the order of acquittal passed by the Additional District Magistrate should be set aside and the appeal re-heard after opportunity is given to the complainant to be present at the hearing.

3. The Rule is made absolute in the above terms. The appeal will be heard by the District Magistrate himself or by another officer to be nominated by him.

Duval, J.

4. I agree. It is clear that no notice to the officer appointed by the Local Government was given as required by Section 422 Cr.P.C. This alone is good reason for ordering the appeal to be re-heard. As to whether the complainant should have got notice the Code is silent on the point; but so far as the custom of this Court as, also of the Subordinate Courts is concerned, it is established that such notice should be given to the complainant in a case in which compensation has been given to the complainant.


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