BASHIR-UD-DIN AND ANR Vs. EMPEROR

JUDGEMENT

(1.) These are two applications for transfer of two cases, one pending in the court of the joint Magistrate Bareilly, and the other in that of the City Magistrate of that District. The case pending in the former court is one under Section 60-A of the Excise Act against the applicant Bashir-ud-din, the other is one under Sections 352 and 352. Indian Penal Code, against both the applicants, Bashir ud din and Nizam-ud-din, who are brothers.

(2.) On the 12th July, 1931, the person of Bashir-ud-din was searched for cocaine by the Police about 10 p.m. at a public place. This is alleged to have led to a scuffs between the applicants on the one side and some Police Constables on the other. It is not necessary for the purposes of these applications to describe in detail the events which happened on that occasion, Subsequently Bashir-ud-din was sent up for trial for an offence under the Excise Act, before the Joint Magistrate and both the applicants were sent up to the court of the City Magistrate for an offence under Sections 332 and 225, Indian Penal Code, as already stated. Though the two offences are alleged to have been committed in almost the same transaction, the arrangement of work in the district necessitated the two cases being laid before two different courts.

(3.) The offence under Section 332, viz., voluntarily causing hurt to deter a public servant from his duty, is reliable, to is an offence under Section 225, unless the person to be apprehended or attempted to be rescued, is charged with, or liable to be apprehended for an offence punishable with transportation of life or imprisonment for a term which may extend to ten years. To clear the ground, it may be stated at once, that the applicants were charged with a minor offence under Section 225 referred to above as they were alleged to have offered resistance to the apprehension of a person (Bashir-ud din) charged with an offence under Section 60-A of the Excise Act, which is punishable with not more than two years rigorous imprisonment. It follows that neither of them was accused of a non-bailable offence. Accordingly they were released on tad by the Police who submitted a charge sheet on the 17th July, 1931, in the case under Sections 33a and 225. The City Magistrate allowed them to remain on bail by an order dated the 18th July, 1931.