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Azizur Rahman and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Reported inAIR1926Cal590
AppellantAzizur Rahman and ors.
RespondentEmperor
Excerpt:
- .....that it was a case under section 148 of the i.p.c., an offence which is triable only by a 1st class magistrate. he thereupon submitted the record of the case to the sub-divisional officer for necessary orders. on the next day the sub-divisional officer passed the following order: 'there will not be any miscarriage of justice if the case be disposed of under section 147, i.p.c. the case is pending for a year and a half. i return the record'. on the same day, i.e., the 20th may 1925, the trying magistrate passed the following order: 'accused asad ali, will remain on bail of rs. 300. he will appear when called for. examined all the 12 accused present. at this stage accused files a petition praying for framing charge under section 148, i.p.c. under which this case comes. court.....
Judgment:

1. This is a Rule calling upon the District Magistrate of Chittagong to show cause why the conviction and sentence passed on the petitioners should not be set aside or such other or further order made as to this Court may seem fit and proper.

2. The facts, shortly stated, are as follows: The petitioners are seven in number and they together with some other persons were put upon their trial before Mr. S.P. Banerjee, Deputy Magistrate with 2nd Class powers at Chittagong, under Section 147, I.P.C. The Petitioners 1 to 4 were all charged under Section 325, I.P.C., and the Petitioner No. 7 was further charged under Section 324, I.P.C. The case for the prosecution was that one Basarat Ali was in possession of certain lands. On the 30th December 1923, Basarat's cousin, Rufia Khatun, was plucking brinjals from Basarat's land. Thereupon several persons came up and asked her to leave the field, but she refused to do so. Thereafter a large body of men, including the present petitioners, came upon the land armed with lathis and spears and assaulted Rafia Khatun. It is alleged that the Petitioner No. 7 wounded her with a spear and that three persons who had come to help Rafia Khatun were assaulted and wounded. The defence of the petitioners was that they were not guilty, that they had been falsely implicated in this case on account of enmity and that the prosecution story was false and further that Basarat Ali was not in possession of the lands in question. It appears that before the prosecution witnesses were examined, the complainant filed a petition praying for withdrawal of the case, but on the 6th April 1925, the learned Magistrate instead of disposing of the petition for withdrawal made the following order: 'Complainant has filed a petition for withdrawing the case. The petition was forwarded to S.P. who is dealing with it. Put up, on 20th April 1925. Accused as before. Witnesses will appear when required.' On the 20th April 1925, the Magistrate passed the following order: 'S.P. has not given his assent to the withdrawal of this case; it will, therefore, proceed. Issue summons on the prosecution witnesses. Accused as before. Adjourned till the 6th May 1925.' Thereafter the case came on before the Magistrate on the 19th May 1925, when four prosecution witnesses were examined-in-chief. The Sub-Inspector of Police was not present and the Magistrate came to the conclusion that it was a case under Section 148 of the I.P.C., an offence which is triable only by a 1st Class Magistrate. He thereupon submitted the record of the case to the Sub-Divisional Officer for necessary orders. On the next day the Sub-Divisional Officer passed the following order: 'There will not be any miscarriage of justice if the case be disposed of under Section 147, I.P.C. The case is pending for a year and a half. I return the record'. On the same day, i.e., the 20th May 1925, the trying Magistrate passed the following order: 'Accused Asad Ali, will remain on bail of Rs. 300. He will appear when called for. Examined all the 12 accused present. At this stage accused files a petition praying for framing charge under Section 148, I.P.C. under which this case comes. Court Sub-Inspector is of the same opinion. An offence under Section 148, I.P.C., is triable by a 1st Class Magistrate. I submit the record before the District Magistrate for necessary orders. Accused as before.' The record having been laid before the District Magistrate, he passed the following order on the same day: 'There is no 1st Glass Magistrate available. Case will proceed.' Thereafter charges were framed under Sections 324 and 147, 325, I.P.C. as indicated above. By his judgment, dated the 27th July 1925, the learned trying Magistrate held that the charge under Section 325, I.P.C., against the Petitioners 1, 2 and 4 had not been substantiated and he convicted all the petitioners under Section 147, I.P.C., and Petitioner No. 7 was further convicted under Section 324, I.P.C., All the petitioners were sentenced under Section 147, I.P.C., to undergo rigorous imprisonment for three months and Petitioner No. 7 was further sentenced to three months' rigorous imprisonment under Section 324, I.P.C., Against the conviction and sentence the petitioners appealed to the District Magistrate, but the appeal was disposed of by Mr. Gupta, Deputy Magistrate, 1st Class with appellate powers. The latter by his judgment dated the 7th October 1925, upheld the conviction, but he reduced the sentence under Section 147 to rigorous imprisonment for six weeks and the sentence under Section 324, I.P.C., to a fine of Rs. 60. Thereafter the petitioners applied to this Court and obtained the present Rule on revision.

3. It has been contended before us that the learned trying Magistrate ought not to have referred the complainant's petition for withdrawal to the Superintendent of Police, inasmuch as the effect of such reference was that the Magistrate allowed the Superintendent of Police to determine whether the offences should be allowed to be compounded and the case withdrawn or not, when it was his duty to dispose of the petition for withdrawal. In the second place, it has been contended that the trying Magistrate having been of opinion that on the evidence the case was one under Section 148, I.P.C., he had no jurisdiction whatsoever to hold the trial. And lastly, it has been contended that the appellate Court has failed to consider the evidence, in the case, especially the evidence of the defence witnesses.

4. As regards the first contention, from what has been set out above it is apparent that the Magistrate, instead of applying his own mind to the question of the disposal of the petition for withdrawal, allowed himself to be guided by what the Superintendent of Police thought about this matter. This was a proceeding on the part of the Magistrate which was wholly improper. He was sitting as a judicial officer charged with the duty of determining judicially matters which came before him; it did not and ought not to have mattered to him in the least what the police thought of any particular petition which had been put in before him and, we trust that in future the Magistrate will be more careful in matters of this description. The procedure which was adopted by the Magistrate is one which is greatly to be deprecated because it gives rise to an impression that the police have considerable influence with Magistrates as regards the way in which cases are disposed of. Such an impression ought never to be allowed to exist and we trust we have heard the last of any such complaint.

5. As regards the second point, we think that the contention urged before us is sound. The trying Magistrate came to the conclusion on the evidence recorded by him that the case was one for trial under Section 148, I.P.C., and, therefore, triable only by a Magistrate with 1st Class powers and not triable by him because he had only 2nd class powers. In these circumstances we do not understand the order made by the District Magistrate on the 20th May 1925. The matter involved was one of jurisdiction and the District Magistrate could not give jurisdiction to the trying Magistrate by such an order as he made on the 20th May 1925. It was illegal and irregular and we are constrained to hold that the trying Magistrate had no jurisdiction whatsoever to try this case. He could not be invested with jurisdiction because of the fact that at the moment there was no Magistrate with first class powers available. Administratively it might have been inconvenient, but administrative inconvenience cannot give jurisdiction to a Magistrate.

6. In view of the order which we propose to make, it is quite unnecessary for us to deal with the third ground urged before us, namely, that the appellate Court had not considered the evidence of the witnesses, especially the evidence of the defence witnesses. We are of opinion, on an examination of the record, that the convictions and sentences passed in this case cannot stand and we, therefore, set aside the same. We have anxiously considered as to whether we should order a re-trial in this case, but we have come to the conclusion that, having regard to the facts and circumstances disclosed on the record, it is unnecessary to order a re-trial.

7. The result, therefore, is that the convictions and sentences on the petitioners are set aside and the Rule made absolute. The petitioners will be discharged from their bail bonds.


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