KANAI HIZRA Vs. GOLAP HIZRA

JUDGEMENT

(1.) This is an application for revision of an order passed by a learned Sessions Judge affirming the order of the Sub-Divisional Officer and a Magistrate, First Class, Chinsurah, issuing process under Section 323, Penal Code, against the petitioners.

(2.) The matter arises in this way. On 4-6-1951 one Golap Hizra filed a petition of complaint before the Sub-Divisional Officer, Hooghly. The allegations in the petition of complaint are as follows : On 29-5-1951 the complainant was requested by some of the accused to attend a 'salish' to have a case, pending in the criminal court of Alipore between Kanai and himself, compromised. As such on that date the complainant proceeded from Howrah to Baidyapur by train to attend this 'salish'. While he got down from the compartment of the train at Bandel station all the three petitioners hit the complainant with an iron rod, brickbat and a broomstick. On this complaint a process was issued by the Sub-Divisional Officer, Chinsurah, before whom the complaint was made, and the petitioners were summoned under Section 352, Penal Code, and the case was fixed for examination of the complainant on 3-7-1951. On that date, that is on 3-7-1951, the complainant did not turn up and thereupon the learned Magistrate directed the accused to be acquitted under Section 247, Criminal P. C. Thereafter on 4-7-1951 another complaint was made on the self-same facts on which the previous complaint was made and his plea was that when the case was called on, on the previous day, he had just been away from the court premises and he asked for process against the accused. That petition came up for hearing before Mr. N.R. Banerjee, Magistrate, Chinsurah, who was at that time taking the files of the Sub-Divisional Officer. He examined the complainant, but in his opinion a complaint was made on the same occurrence as was filed before the Sub-Divisional Officer on 4-6-1951 and on which the accused were summoned under Section 352, Penal Code, and subsequently acquitted under Section 247, Criminal P. C., and the present complaint was a duplication of the Complaint dated 4-6-1951 and cannot be entertained according to law. He however did not make any order but put up the matter before the Sub-Divisional Officer for his orders. The learned Sub-Divisional Officer on 9-7-1951 took a rather strange view of this matter. Although the 'previous complaint was dismissed and the accused was acquitted, yet he held that in the previous case process had been wrongly issued under Section 352, Penal Code, and that it should have been issued under Section 323, Penal Code, and he consequently issued a process on the self-same facts under Section 323, Penal Code.

(3.) Against that order of the learned Magistrate the petitioners preferred an appeal to the Sessions Judge, but the learned Sessions Judge took the view that the order of the learned Magistrate was in order and he affirmed it. The petitioners have made the present application before us in revision against the said order of the learned Sessions Judge affirming the order passed by the Sub-Divisional Officer, Chinsurah.