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Kalisadhan Addya Vs. Nani Lal Hazra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1925Cal721
AppellantKalisadhan Addya
RespondentNani Lal Hazra
Excerpt:
- .....code.'4. whatever may be said to be the justification for the order which the learned sessions judge passed in this matter, he does not appear to have dealt with one very important question which arises in a ease of this nature, namely, in a ease where the discretion vested in the trying magistrate is exercised by that court in refusing to make an order under section 476. where a superior court reverses the order of the trial court refusing to proceed under section 476 of criminal procedure code sufficient reasons must be given by that court as to why he thinks that the discretion was not properly exercised. in the present case it does not seem that the learned sessions judge directed his attention to this matter at all. on this ground, therefore, it seems to us that the order passed.....
Judgment:

1. The Rule has been issued to show cause why the order passed by the Sessions Judge of the 24-Parganas, dated the 12th September, 1924, should not be set aside, or such other or further order passed as to this Court may seem fit. The order in question was passed by the learned Sessions Judge under the provisions of Section 476-B of the Code of Criminal Procedure.

2. The petitioner was the complainant in a case under Section 406 of the Indian Penal Code which he had instituted against one Nani Lal Hazra. The case was triad by the Honorary Magistrate, Rev. K.P. Banerjee, who, on the 23rd May, 1924, acquitted the accused, Nani Lal, on the charge on which he was tried. On an application made by the accused, Nani Lal, the petitioner was called upon to show cause as to why he should not be prosecuted under the provisions of Section 476 of the Criminal Procedure Code. The petitioner showed cause, and the learned Honorary Magistrate, on the 11th July, 1924, after hearing the petitioner, passed an order to the effect that he did not wish to prosecute the petitioner. The accused Nani Lal thereupon preferred an appeal, under the -provisions of Section 476-B of the Criminal Procedure Code, to the learned Sessions Judge, and the learned Sessions Judge, on the 12th September, 1924, passed the order which forms the subject-matter of this Rule.

3. The relevant portion of the order of the learned Sessions Judge, wherein he gives his reasons for making the order which is complained of, runs in these words: 'The learned pleader for the petitioner urges that it has been shown that the opposite party made deliberate false statements. They are detailed in the petition (meaning the petition presented by the accused Nani Lal in this Court). The opposite party has appeared. The cause shown is not sufficient. The appeal will be allowed. Let a complaint be made to the Magistrate directing the prosecution of the opposite party under Sections 211 and 193 of the Indian Penal Code.'

4. Whatever may be said to be the justification for the order which the learned Sessions Judge passed in this matter, he does not appear to have dealt with one very important question which arises in a ease of this nature, namely, in a ease where the discretion vested in the trying Magistrate is exercised by that Court in refusing to make an order under Section 476. Where a superior Court reverses the order of the trial Court refusing to proceed under Section 476 of Criminal Procedure Code sufficient reasons must be given by that Court as to why he thinks that the discretion was not properly exercised. In the present case it does not seem that the learned Sessions Judge directed his attention to this matter at all. On this ground, therefore, it seems to us that the order passed by him should be set aside.

5. There is a further matter to which our attention has been drawn by the learned Vakil for the petitioner, and that is the form in which the complaint was actually-sent to the Magistrate by the learned Sessions Judge. In the copy of the complaint that is to be found on the record the particulars of the offence under Section 193 of the Indian Penal Code do not appear to have been set out. That is absolutely necessary in view of the definition of complaint as contained in the Code of Criminal Procedure.

6. For all these reasons, we think that the order passed by the learned Sessions Judge on the 12th September, 1924 should be set aside. The Rule is accordingly made absolute.


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