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Basudeo Mondal and ors. Vs. Dud Kr. Pramanick and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1982CriLJ1654
AppellantBasudeo Mondal and ors.
RespondentDud Kr. Pramanick and anr.
Cases ReferredChandra Deo v. Prakash Chandra
Excerpt:
- .....in the complaint. the learned sub-divisional judicial magistrate then transferred the case to the learned judicial magistrate, 6th court, alipore.3. complaint case no. 65/75 has arisen from a complaint filed by the opposite party lalit kumar pramanick (in criminal revision no. 1039 of 1979} alleging that on 4-1-75 and 5-1-75 the petitioners and others forcibly entered into the disputed land and reaped the paddy grown there by the opposite party. in this case also the learned sub-divisional judicial magistrate referred the complaint to the local j.l.r.o. for investigation under section 202 of the code and after obtaining the report of the circle inspector forwarded by the j.l.r.o. issued process under section 379 i.p.c. against basudeb mondal who was one out of 12 persons named as.....
Judgment:
ORDER

Amitabha Dutta, J.

1. The Criminal Revision No. 1038 of 1970 is directed against the order dated 12-2-79 passed by the learned Judicial Magistrate. 6th Court, Alipore issuing summonses under Section 379 I.P.C. against the petitioners Nos. 3 to 7 in Complaint Case No. 63 of 1975 and Criminal Revision No. 1039 of 1979 is directed against an order of the same date passed by him issuing process under Section 379 I.P.C, against the petitioners Nos. 2 to 4 in Com-paint Case No. 65 of 1975.

2. Complaint Case No. 63/75 has originated from a complaint filed by the opposite party Dud Kumar Pramanick (in Criminal Revision No. 1038 of 1979) alleging that on 4-1-75 and 5-1-75 the petitioners and others forcibly trespassed into the disputed land and reaped and removed the paddy grown there by the opposite party. The learned Sub-Divisional Judicial Magistrate examined the complainant and directed an investigation into the complaint by the local J.L.R.O. apparently under Section 202 of the Cr. P.C. Thereafter, he considered the report of the Circle Inspector forwarded by the J.L.R.O. and issued process under Section 379 I.P.C. against Basudeb Mondal and Nishi Kanta Mondal who are two out of 11 persons named as accused in the complaint. The learned Sub-Divisional Judicial Magistrate then transferred the case to the learned Judicial Magistrate, 6th Court, Alipore.

3. Complaint Case No. 65/75 has arisen from a complaint filed by the opposite party Lalit Kumar Pramanick (in Criminal Revision No. 1039 of 1979} alleging that on 4-1-75 and 5-1-75 the petitioners and others forcibly entered into the disputed land and reaped the paddy grown there by the opposite party. In this case also the learned Sub-Divisional Judicial Magistrate referred the complaint to the local J.L.R.O. for investigation under Section 202 of the Code and after obtaining the report of the Circle Inspector forwarded by the J.L.R.O. issued process under Section 379 I.P.C. against Basudeb Mondal who was one out of 12 persons named as accused in the petition of complaint. Thereafter, the learned Sub-Divisional Judicial Magistrate transferred the case to the learned Judicial Magistrate, 6th Court, Alipore.

4. In each of these two cases the learned transferee Magistrate examined the complainant as P. W. 1 and after considering his evidence and the report of the investigation forwarded by- the J.L.R.O. has found that there is prima facie case against all the persons named as accused in the petition of complaint and in that view he has issued process under Section 379 I.P.C. against the remaining persons -complained against in the two petitions of complaint.

5. It has been submitted by the learned advocate for the petitioners in each case that the learned transferee Magistrate had no jurisdiction to issue process against the petitioners as the learned Sub-Divisional Judicial Magistrate who took cognizance of the offence did not proceed against them although they were named in the petition of complaint. In this connection, it is further submitted that Section 319 of the Criminal P. C, 1973 does not empower the transferee Magistrate to proceed against the petitioners as the expression 'any person not being the accused' in Section 319(1) excludes a person named as an accused in the petition of complaint and on a proper construction of the word 'accused' in the said Sub-section it includes a person named as accused in the petition of complaint although no process has been issued against him. But, in my view, this contention has no force. It has been held by the Supreme Court in the case of Chandra Deo v. Prakash Chandra : [1964]1SCR639 that a person complained against does not come into the picture at all until process is issued. It is the issue of process that makes a person complained against an accused. The expression 'any person not being the accused' in Section 319(1), in my opinion, means a person against whom no process has already been issued because if process has already been issued against a person the question of adding him as an accused in the case and proceeding against him as contemplated in that section will not arise at all- The contention that the learned transferee Magistrate had no jurisdiction to issue process against the petitioners as the Magistrate who took cognizance of the offence did not proceed against them is not tenable in view of the Bench decision In the case of In Re Azim Sk. 1908) 7 Cal LJ 249 : 7 Cri LJ 318. In the said reported case one Bacharudi complained against Sk. Meghu and Sk. Azim and others that they had trespassed on his land. The Sub-Divisional Judicial Magistrate examined the complainant and, summoned Sk. Meghu. He passed no orders with respect to the others. Subsequently the case was transferred to an honorary Magistrate who after taking evidence acquitted Meghu and summoned Azim to take his trial under Section 447 of the Code. Ashutosh Mookerjee, J. (as he then was) held that as the Sub-Divisional Magistrate took cognizance of the whole case examining the complainant and transferred it under Section 192 to the honorary Magistrate, the fact that he did not summon Azim did not amount to a dismissal of the case as against Azim, nor could it annul the cognizance which he had already taken of the case as a whole. So, the transferee Magistrate was competent to issue process against Azim. In my view, the transferee Magistrate has full authority to deal with the case as if he took cognizance of the offence.

6. It is next contended on behalf of the petitioners that as the disputed land involved in complaint Case No. 63 of 1975 was attached and a care-taker was appointed in respect of such land by the order of the learned Executive Magistrate in a proceeding under Section 145 of the Code passed on 3-1-75, the complainant opposite party was not in possession of such land on the dates of the alleged offence of theft i.e. 4-1-75 and 5-1-75 and hence the complainant did not make out a prima facie case for proceeding against the petitioners. But this contention is not tenable in view of the evidence that the paddy in question was grown by the complainant and he was in actual possession of the disputed land with standing paddy crop, there being nothing to show that the care-taker appointed in the proceeding under Section 145 of the Code look actual possession of the disputed land before the dates of the occurrence.

7. The learned advocate for the petitioners has further contended that the impugned orders of the transferee Magistrate issuing process against the petitioners are barred by limitation in view of the provisions of Section 468(2)(c) read with Section 469 of the Code, as the dates on which the alleged occurrence took place were more than three years prior to the date of the impugned orders issuing process against the petitioners. But this contention is not well founded as Section 468 of the Code begins with the words 'Except as otherwise provided elsewhere in this Code' and Section 319 of the Code is one such exception and therefore, the bar of limitation will not apply to a case where the Magistrate proceeds against a person under Section 319 of the Code.

8. The last point raised on behalf of the petitioners is that the transferee Magistrate did not apply his mind to the materials before him which do not justify the issue of process against the petitioners. But I cannot accept this contention as the impugned order of the learned Magistrate shows that he considered the evidence of P. W. 1, the complainant and the investigation report from the J.L.R.O. in coming to his decision that there is sufficient ground to proceed against the petitioners. It cannot be said that the materials before him do not warrant the issue of process against the petitioners.

9. As a result I find that these two applications cannot succeed. They are dismissed. The Rule issued in each of the two cases is discharged.

Let the records be sent down within a month.


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