SASADHAR SARKAR Vs. STATE

JUDGEMENT

(1.) This is an application for revision of an order of the Additional Sessions Judge, 24-Parganas, affirming an order of a Magistrate, 1st Class, Alipore, convicting the petitioner under Section 408, Penal Code and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1000/-, in default to rigorous imprisonment for a further period of one year.

(2.) The prosecution case shortly stated is as follows. The petitioner was an employee of the complainant, Manibhusan Pal who had a goldsmith shop at No. 20, Orphangunge Market, Kidderpore. The petitioner, was entrusted with silver ornaments weighing 4108 bharis and odd annas to be sold at different places outside Calcutta. The petitioner along with his co-employee, one San'tosh Pal, went outside Calcutta and sold some of those ornaments and on return to the shop did not see the complainant or wait for him. He left the unsold ornaments in the shop but went home with the sum of Rs. 2796-9-6 being the sale proceeds of the remaining ornaments. The complainant waited for two days, but as the petitioner did not turn up he lodged information at the thana. Thereafter, a charge sheet was submitted by the police and the petitioner, was tried under Section 408, Penal Code, and convicted and sentenced as mentioned.

(3.) The case was first tried by another Magistrate and. on such trial the petitioner was convicted. Against that conviction he preferred an appeal. The learned Additional Sessions Judge on hearing the appeal held that there was no proper charge and, therefore, no proper trial and he sent back the case for a fresh trial by some other Magistrate with a direction that the case has to be retried after framing a proper charge on the prosecution evidence that was already on the record and allowing the accused an opportunity to cross-examine the witness and adduce evidence, if so' desired. Thereafter another Magistrate tried the present case and in accordance with the said direction of the Additional Sessions Judge proceeded to try it from the point when the charge had to be framed. He did not hear the evidence of the witnesses for the prosecution which was given before the previous Magistrate. After such trial, he found the petitioner guilty of the offence with which he was charged and convicted him, as aforesaid. Against that conviction the petitioner preferred an appeal to the Additional Sessions Judge and one of the points urged before him was that the trial. by the Magistrate should have been a de novo trial. In other words, it was contended that he could not start the case from the stage when the charge had to be framed. That contention of the petitioner was negatived by the learned Additional Sessions Judge who took the view that the case was covered by section 350 of the Code of Criminal Procedure; and as the accused, who had the right to have the witness recalled and reheard, did not exercise that right, the question as to the application of proviso (a) of Section 350 did not arise. The learned Additional Sessions Judge further held that an order had already been passed previously by the then Additional Sessions Judge before whom the appeal against the previous conviction had been heard, and as there was no appeal against the said order of the Additional Sessions Judge and as the trial took place in accordance with the directions contained in the said order, the said contention could not now be raised by the petitioner.