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OhiduddIn Choudhury and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in44Ind.Cas.122
AppellantOhiduddIn Choudhury and ors.
RespondentEmperor
Excerpt:
criminal procedure code (act v of 1898), section 107 - breach of peace apprehended in sub-division--accused living in sudder division--procedure irregularity--overt acts--apprehension of breach of peace. - .....it was, necessary, therefore, under section 107 (2), criminal procedure code, to go before the district magistrate for commencement of the proceedings. the district magistrate, instead of drawing up proceedings and sending them to the sub-divisional magistrate, said that he sanctioned' proceedings and sent the case to the sub-divisional magistrate. the intention of the district magistrate is clear, but he expressed himself loosely and not strictly in accordance with the section. we do not think, however, that that would deprive the trying magistrate of jurisdiction in the case. it is a mere irregularity in expression which could not affect the merits of the trial in any way.2. then it is urged that the overt acts, if any, proved against the accused were sometime prior to the.....
Judgment:

1. In this case an objection is taken on behalf of the three accused who have been bound down under Section 107, Criminal Procedure Code, that the proceedings before the Trying Magistrate were without jurisdiction. It appears that the breach of the peace apprehended was within the Sub-Division of Chandpur, whereas the accused reside in the Sudder Division. It was, necessary, therefore, under Section 107 (2), Criminal Procedure Code, to go before the District Magistrate for commencement of the proceedings. The District Magistrate, instead of drawing up proceedings and sending them to the Sub-Divisional Magistrate, said that he sanctioned' proceedings and sent the case to the Sub-Divisional Magistrate. The intention of the District Magistrate is clear, but he expressed himself loosely and not strictly in accordance with the section. We do not think, however, that that would deprive the Trying Magistrate of jurisdiction in the case. It is a mere irregularity in expression which could not affect the merits of the trial in any way.

2. Then it is urged that the overt acts, if any, proved against the accused were sometime prior to the commencement of these proceedings in January 1917. That, however, is a matter which must be taken into consideration with all the circumstances in the case and it may well be that, though there were no actual overt acts on the part of the accused during the six months preceding the commencement of this trial, there might still be a likelihood that they would commit a breach of the peace or disturb the public tranquillity or do some wrongful act which might occasion a breach of the peace. We do not, therefore, feel disposed to interfere on this ground.

3. The last ground, which is taken by Ohiduddin Choudhury alone, is that the amount of the security demanded from him is excessive and that he will not be readily able to find it. He was ordered to enter into his own bond for Rs. 5,000 and to find one surety in a like sum. It is urged that it may be difficult for him to find a single surety in a sum of Rs. 5,000. He will, however, be able to find two sureties in Rs. 2,500 each. To this the Crown has no objection. We accordingly vary the order and direct that, besides his own bond of Rs. 5,000, Ohiduddin Choudhury do find two sureties in two sums of Rs. 2,500 each. In other respects the Rule is discharged.


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