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Lakhai Narayan Ghosh Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.276
AppellantLakhai Narayan Ghosh
RespondentEmperor
Cases ReferredThakur Pershad v. The Emperor
Excerpt:
criminal procedure code (act v of 1898), sections 190(c), 556 - cognizance of offence--magistrate also manager of encumbered estate--cognizance as magistrate on report us manager--attachment of subject-matter of alleged offence. - .....in this matter was illegal and that the present proceedings must accordingly be quashed. the rule is made absolute.carnduff, j.5. in the particular circumstances of this case i am prepared to agree to the rule being made absolute. it will, of course, be open to the authorities to re-institute proceedings against the petitioner on a firmer basis, should they be so advised.6. but i am not prepared to accept without question the ruling in thakur pershad v. the emperor 10 c.w.n. 775 : 3 cr. l.j. 473, in so far as it lays it down that a magistrate is not competent to act under section 190(1)(c) of the code of criminal procedure on any information which has been transmitted to him in another public capacity. this clearly goes beyond the provisions of the code itself: and i am inclined to.....
Judgment:

Stephen, J.

1. In this case the Deputy Commissioner of Singhbhum ordered a prosecution of the petitioner for wrongfully cutting J certain trees in a forest and on reading the explanation we must take him to; have done this under Section 190(c), Criminal Procedure Code. He also ordered certain trees to be attached.

2. This rule has been granted on two points. The first is that he had no authority to order the prosecution, and the second that he had no authority to attach the trees.

3. As regards the second part of tie rule it is admitted that the order was without, jurisdiction and the rule must be made absolute.

4. As regards the first part what happened is as follows: The Deputy Commissioner was also the Manager of the encumbered estate, and in that capacity ordered one Kedar Nath Sirkar, a servant of the Court of Wards to make certain enquiries. The order which is pew complained of was made as the result of the report made by Kedar Nath. It is now argued on the strength of the ruling in Thakur Pershad v. The Emperor 10 C.W.N. 775 : Cr. L.J. 473 that he had no authority to do so, because having received the information as the Manager he could not act upon it as a Magistrate. In accordance with that ruling, I am of opinion that his action in this matter was illegal and that the present proceedings must accordingly be quashed. The Rule is made absolute.

Carnduff, J.

5. In the particular circumstances of this case I am prepared to agree to the rule being made absolute. It will, of course, be open to the authorities to re-institute proceedings against the petitioner on a firmer basis, should they be so advised.

6. But I am not prepared to accept without question the ruling in Thakur Pershad v. The Emperor 10 C.W.N. 775 : 3 Cr. L.J. 473, in so far as it lays it down that a Magistrate is not competent to act under Section 190(1)(c) of the Code of Criminal Procedure on any information which has been transmitted to him in another public capacity. This clearly goes beyond the provisions of the Code itself: and I am inclined to think that the safeguards supplied by those provisions are sufficient, and that there is no adequate reason, based on general principles, for extending or amplifying them. If a Magistrate takes cognizance under the Clause referred to on information received from any person other than a police officer or upon his own knowledge or suspicion, then he is bound by Section 191 to give the accused an early opportunity for objection and obtaining a trial at the hands of another Magistrate. And, where a Magistrate is 'personally interested' in a case, he cannot, under Section 556, try it or commit it for trial without special permission. These provisions follow the salutary rule that a Judge shall not be a Judge in what may be called his own cause; but they drew the line, advisedly as I imagine, at trial or commitment, and do not go the length of impeding mere cognizance of crime. Nor would it, in the circumstances of this country, be advisable to go so far; for, although it is undoubtedly better that a Magistrate should not move at all where he is, or has been, in any way himself concerned, it is not difficult to conceive a case in which there might be in one but such a Magistrate competent to act, and his incapacity to issue process might involve the escape scot-free of an offender. I should hesitate, therefore, to add to the statute law on the subject.


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