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Emperor Vs. Jitendra Nath Bose and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in89Ind.Cas.709
AppellantEmperor
RespondentJitendra Nath Bose and anr.
Cases ReferredI. v. Mitchel
Excerpt:
criminal procedure code (act v of 1898), section 333 - nolle prosequi, effect of--accused, whether can be tried on same charge subsequently. - .....could be read out to the prisoners in the dock, learned counsel for one of them, namely, jitendra nath bose, submitted the following matters for my consideration. it appears that the prisoner, jitendra nath bose, was indicted before this court sometime in december 1920, along with another person named haridas mullick, who is now the other prisoner in the dock. haridas mullick was then an absconder, and the then advocate-general of bengal, on behalf of the king-emperor, informed this court that he would not further prosecute the said jitendra nath bose on the charges which had been framed, and he prayed that, under section 333 of the or p.c. all further proceedings against the said jitendra nath bose might be stayed upon the said charges. thereupon the learned judge, then presiding at.....
Judgment:

C.C. Ghose, J.

1. Two persons have been brought up before me for trial on various charges Before the charges could be read out to the prisoners in the dock, learned Counsel for one of them, namely, Jitendra Nath Bose, submitted the following matters for my consideration. It appears that the prisoner, Jitendra Nath Bose, was indicted before this Court sometime in December 1920, along with another person named Haridas Mullick, who is now the other prisoner in the dock. Haridas Mullick was then an absconder, and the then Advocate-General of Bengal, on behalf of the King-Emperor, informed this Court that he would not further prosecute the said Jitendra Nath Bose on the charges which had been framed, and he prayed that, under Section 333 of the Or P.C. all further proceedings against the said Jitendra Nath Bose might be stayed upon the said charges. Thereupon the learned Judge, then presiding at the Criminal Sessions in this Court, passed an ordar to the effect that all proceedings on the said charges. against the prisoner, Jitendra Nath Bose, should be stayed, and that he discharged of and from. The same.

2. As regards the charges against the prisoner, Haridas Mullick, the case was adjourned sine die. The prisoner Haridag Mullick, who, as I have said, was an absconder, has recently been arrested, and baa been placed before me for trial along with the said Jitendra Nath Bose, a notice upon the latter having been served calling upon him to show cause why he should not be proceeded with the charges which had been framed against him in December, 1920. Learned Counsel for the prisoner, Jitendra Nath Bose, contends that the nolle prosequi, entered into by the learned Advocate-General in the matter of the charges against the said prisoner, had put an end to the particular indictment on which he had been brought up before the learned Judge in the Sessions Court in December 1920, and that, therefore, he can. not be proceeded against now on the same' charges. In support of his contention he has drawn my attention to the cases of R. v. Allen (1862) 31 L.J.M.C. 129 : 1 B. & Section 850 : 9 Cox. C.C. 120 : 5 L.T. 636 : 8 Jur. (N.S.) 230 : 121 B.R. 929 : 124 R.R. 781, and II. v. Mitchel (1848) 3 Cox. C.C. 93 : 6 S.t. Tr. (N.S.) 545. He has also drawn my attention to the statement of the law in that well known book Short and Mellor on Crown Practice 2nd Edition, 142. That this is the correct view is also borne out by the statement of the law in Arch bold on Criminal Pleading and Practice 26th Edition, 125, and in Halsbury's Laws of England, Vol. IX, page 350.

3. Learned Counsel for the Crown states before me in unequivocal language that he cannot proceed on the indictment which was mentioned in Mr. Advocate-General Gibbons' endorsement on the charge, but he contends that, inasmuch as the prisoner, Jitendra Nath Bose, has been brought before me, and inasmuch as the order under Section 333 of the Cr. P.C. does not operate as an acquittal, I can even now investigate the charges which were framed-against the prisoner, Jitendra Nath Bose, in December 1920. Learned Counsel for the Crown has failed to give me any authority in support of this proposition. He has referred me to Section 225 of the Cr. P.G and Section 491 of the Cr. R.C. and Sections 23 and 21 of the Letters Patent of 1865. As I read these provisions,' my powers are limited, and are not so wide as has been contended before me by learned Counsel for the Grown! If those powers were as wide as learned Counsel for the Crown has contended they were, I should have been intensely surprised at the novelty of the. width of the powers, but as I have said, my powers are wholly limited by Statute : and holding, as I do, that the nolle prosequi put an end to the particular indictment against the prisoner, Jitendra Nath Bose, which was before the Court in December 1920 (and the charge now before me against the prisoner, Jitendra Nath Bose, is the same charge as was before the Court in December 1920), I have no other alternative but to direct that the present indictment against the prisoner, Jitendra Nath Bose, cannot be proceeded with further, and that he should be forthwith released.

4. The sureties for the prisoner, Jitendra Nath Bose, are discharged.

5. Nothing that I have said herein will be construed as affecting in any way the legality or otherwise of any proceedings that may be taken hereafter by the Crown against Jitendra Nath Bose.


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