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Surendra Nath Banerjee Vs. Dhirendra Nath Dhar and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1929Cal785
AppellantSurendra Nath Banerjee
RespondentDhirendra Nath Dhar and anr.
Excerpt:
- .....to the complainant. the accused set up the case of consent, but that has been negatived by the learned magistrate. he, however, was satisfied that the offence was of a trivial nature. accordingly he dealt with the case under the provisions of section 562(1-a) whereby the accused was released with an admonition.2. the complainant has obtained this rule and asks that some punishment should be awarded in respect of the offence committed. it is not a matter which commends itself to us, whether we look upon it as an application made by a complainant for enhancement of sentence, or as in the nature of an appeal against an acquittal, and it is quite clear that a strong case would have to be made out on the merits before this court would interfere at all in such a case. it is a case for the.....
Judgment:

1. In this case the accused was charged under Section 427, I.P.C. relating to an incident whereby the accused cut down a cocoanut tree belonging to the complainant. The accused set up the case of consent, but that has been negatived by the learned Magistrate. He, however, was satisfied that the offence was of a trivial nature. Accordingly he dealt with the case under the provisions of Section 562(1-A) whereby the accused was released with an admonition.

2. The complainant has obtained this rule and asks that some punishment should be awarded in respect of the offence committed. It is not a matter which commends itself to us, whether we look upon it as an application made by a complainant for enhancement of sentence, or as in the nature of an appeal against an acquittal, and it is quite clear that a strong case would have to be made out on the merits before this Court would interfere at all in such a case. It is a case for the discretion of the learned Magistrate to act under this Sub-section having regard to all or any of the various matters which are there enumerated, and unless it can be said that that discretion has been wrongly exercised or has not been judicially exercised we should be in any event unable to interfere. It is not necessary to express any opinion as to the practice to be followed in a case such as this where the rule has been issued and at the hearing it is not supported on behalf of the Crown but is supported by the complainant only, though it is said that on that ground also the rule ought to fail.

3. As the rule in this case has been granted by a Bench of this Court we have gone into the case on the merits and we think that it ought to be discharged.


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