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Muhammad HossaIn and ors. Vs. Bholanath Das - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in162Ind.Cas.176
AppellantMuhammad HossaIn and ors.
RespondentBholanath Das
Excerpt:
criminal procedure code (act v of 1898), section 561-a - penal code (act xlv of 1860), sections 366, 497, 498--acquittal under sections 366--subsequent proceedings launched under sections 497, 498 with view to defeat acquittal--proceedings should be quashed. - .....sending. after the acquittal on appeal in that case this prosecution has been launched against two persons muhammad hossain and bulu khan along with four other persons apparently on the same facts.2. the ground upon which this application was made is that these proceedings are an abuse of the process of the court, inasmuch as on the final finding in the appeal in this case, the facts on which this prosecution is based being the same, there could be no offence under section 498. we find from the record that these two persons muhammad hossain and bulu khan, during the proceedings in the previous case were for six months in jail as under-trial prisoners and subsequently served two months' sentence before they were finally acquitted. there can be no doubt that this prosecution has been.....
Judgment:

Jack, J.

1. This was a Rule calling upon the District Magistrate of Birbhum and upon Bholanath Das, the complainant opposite party to show cause why proceedings under Sections 497 and 498 of the Indian Penal Code should not be quashed or, in the alternative, the case should not be transferred from the Court of Mr. Iyengar to the Court of some Magistrate outside Rampurhat. Two of the petitioners were originally tried for kidnapping under Section 366 and were acquitted on appeal to this Court on the grounds that the girl in question went of her own accord to the house of the accused and that there was no taking or sending. After the acquittal on appeal in that case this prosecution has been launched against two persons Muhammad Hossain and Bulu Khan along with four other persons apparently on the same facts.

2. The ground upon which this application was made is that these proceedings are an abuse of the process of the Court, inasmuch as on the final finding in the appeal in this case, the facts on which this prosecution is based being the same, there could be no offence under Section 498. We find from the record that these two persons Muhammad Hossain and Bulu Khan, during the proceedings in the previous case were for six months in jail as under-trial prisoners and subsequently served two months' sentence before they were finally acquitted. There can be no doubt that this prosecution has been undertaken, in order to endeavour to defeat the effect of the previous acquittal. The facts on which it is founded, are the same. It is urged that now that the girl is free and not under the influence of the other side, she will make statements which will support the prosecution case whereas her statements made in the previous trial went against the prosecution. We find that in the meantime she has been prosecuted under Section 193 for giving false evidence in that connection and it is not likely that much reliance can be placed upon her testimony. There might he something to be said on behalf of the prosecution as against the petitioner Muhammad Hossain who is the only one proceeded against under Section 497. But inasmuch as he has been already in jail for eight months on account of this occurrence, we think that if any offence has been committed, he has already been sufficiently punished. Moreover, there has been a very great delay in prosecuting him. If the husband really intended to prosecute Muhammad Hossain for adultery, he should not have waited ten months to bring the complaint. The husband, in fact, was a witness in the first case and if he had made a complaint at the time these charges could have been made then. In these circumstances, we are of opinion that these proceedings are an abuse of the process of the Court. We, therefore, think that this is a case in which the proceedings ought to be quashed under the provisions of Section 561-A of the Code of Criminal Procedure. We would accordingly make the Rule absolute, quash the proceedings and direct that the accused petitioners be forthwith discharged from their bail bonds.

Lort-Williams, J.

3. I agree.


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