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Rajani Kanta Panja Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.437
AppellantRajani Kanta Panja
RespondentEmperor
Cases ReferredJanki Das v. Emperor
Excerpt:
criminal procedure code (act v of 1898), sections 133, 556 - magistrate issuing notice as chairman of local board--case should not be tried by him. - .....made by mr. rakhal mohan banerjee, sub-divisional officer of bishenpore, under section 133 of the criminal procedure code, it appears that mr. banerjee is also the chairman of the bishenpore local board within the jurisdiction of which the public way, in respect of which the alleged obstruction has been erected by the petitioner, is situated. it is alleged that on the 8th december, 1908, the petitioner received a notice signed by mr. banerjee as chairman of the bishenpore local board and purporting to have been issued from the bishenpore local board office. this notice called upon him to remove the alleged obstruction within seven days and also to show cause within three days why he should not be criminally prosecuted, failing which steps would be taken against him according to law. in.....
Judgment:

1. We are invited in this Rule to consider the legality of an order made by Mr. Rakhal Mohan Banerjee, Sub-Divisional Officer of Bishenpore, under Section 133 of the Criminal Procedure Code, It appears that Mr. Banerjee is also the Chairman of the Bishenpore Local Board within the jurisdiction of which the public way, in respect of which the alleged obstruction has been erected by the petitioner, is situated. It is alleged that on the 8th December, 1908, the petitioner received a notice signed by Mr. Banerjee as Chairman of the Bishenpore Local Board and purporting to have been issued from the Bishenpore Local Board Office. This notice called upon him to remove the alleged obstruction within seven days and also to show cause within three days why he should not be criminally prosecuted, failing which steps would be taken against him according to law. In reply to this notice, the petitioner submitted a representation, which proved infructuous. Subsequently on the 22nd March Mr. Banerjee in his capacity as the Sub-Divisional Officer initiated proceedings under Section 133 of the Criminal Procedure Code, which were terminated on the 24th May by the order now under consideration. The legality of the order has been questioned on the ground amongst others that the Magistrate had no jurisdiction to try the case under Section 556 of the Criminal Procedure Code. That section provides that no Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try any case in which he is a party or personally interested. Then follows the explanation that a Magistrate shall not be deemed to be a party or personally interested, within the meaning of the section, to or in any case by reason only that he is a Municipal Commissioner or otherwise concerned therein in a public capacity or by reason only that he has viewed the place in which an offence is alleged to have been committed or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case To the section is further appended an illustration which runs as follows: 'A, as Collector, upon consideration of information furnished to him, directs the prosecution of B for a breach of Excise Laws. A is disqualified from trying the case as a Magistrate.' In the case before us, the Magistrate in the explanation which he has submitted admits that he received extra-judicial information about the alleged obstruction before he initiated proceedings under Section 133 of the Criminal Procedure Code in his capacity as Sub-Divisional Officer, and we are not prepared to hold that his concern with the case has been merely in a public capacity, so as to take the case out of Section 556 of the Criminal Procedure Code, the illustration to which appears to us to cover the case completely, Janki Das v. Emperor 5 A.L.J. 357; A.W.N. (1908) 95; 7 Cr. L.J. 393 The Magistrate, therefore, ought not to have taken cognizance of the case, except with the permission of the Court to which an appeallies from his Court. Apart from the section, however, we are of opinion that it is highly undesirable that a Magistrate should judicially act in a case which he has himself extra-judicially investigated, and in which, upon facts so investigated, he has come to conclusions of fact adverse to the party against whom he subsequently initiates proceedings under the Criminal Law. The Rule is consequently made absolute and the order of the Court below discharged.


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