ARUNENDU PROKASH BOSE Vs. PULIN BEHIRI ROY CHOWDHURY

JUDGEMENT

(1.) This is a Reference under Section 438 of the Code of Criminal Procedure from the learned Additional Sessions Judge of 24-Parganas, arising out of a ease wherein the accused were tried summarily under Sections 323 and 448 of the Indian Penal Code and convicted and sentenced to pay a fine of Rs. 20 each, in default, to rigorous imprisonment for two weeks. The learned Additional Sessions Judge has recommended "that the "order of conviction and sentence imposed on the accused "Petitioners be set aside and that a retrial by some other "magistrate according to the ordinary procedure under "appropriate charges be directed".

(2.) It appears that against the accused who are five in number a complaint was lodged before the learned subdivisional officer, Alipore, on or about June 15, 1949, praying for summons under Sections 448, 323, 147 and 324 of the Indian Penal Code on certain allegations made therein. The complainant was examined on oath and the matter was sent to the police for enquiry and report. On receipt of the police report, the learned magistrate dismissed the complaint under Section 203 of the Code of Criminal Procedure and rejected the complainant's prayer for a judicial enquiry. There was a motion before the learned Additional Sessions Judge who directed a further enquiry and the case having then gone back to the learned magistrate processes were issued under Section 323 of the Indian Penal Code and all the accused were eventually convicted and sentenced as aforesaid. The matter has now come up to this Court on a reference made by the learned Additional Sessions Judge whose recommendation I have already set out above.

(3.) In the opinion of the learned Additional Sessions Judge, the learned Magistrate was not justified in issuing process only under Section 323 of the Indian Penal Code and trying the case summarily. According to the learned Judge, the petition of complaint, read with the complainant's initial examination on oath,. disclosed offences under Section 147, 324 and 448 of the Indian Penal Code and, accordingly, by issuing process only under Section 323 of the Indian Penal Code and trying the case summarily the learned magistrate acted illegally and the trial held by him was void in law under Section 530(g) of the Code of Criminal Procedure.