STATE Vs. SUDHANGSHU GHATAK

JUDGEMENT

(1.) This is a Reference made by the Session Judge, Murshidabad under section 438 of the old Code of Criminal Procedure, 1898. Sri B. B. Chatterji, Judicial Magistrate, First Class, Jangipur has convicted Sri G. Ghatak, officer - in - charge of Shamserganj Police Station under section 29 of the Police Act, 1861 and has Sentenced him to pay a fine of Rs. 50/ -. He has not imposed any sentence of imprisonment, in default of payment of fine. He has made this order on 4.4.73. The State through its Public Prosecutor of the district of Murshidabad moved the Session Judge on 29.10.73 for making a reference to this Court recommending that the said order of the learned Magistrate convicting and sentencing the officer - in - charge should be set aside as illegally made.

(2.) The learned Session Judge in his Reference has stated that the order of the learned Magistrate has been illegal ; firstly because the learned Magistrate has not followed the procedure laid down in Chapter XX of the old Code of Criminal Procedure 1898 in the trial of the case and secondly because, no complaint in the case was filed before him with the sanction of the District Magistrate or the Superintendent of Police as enjoined by Regulation 434 of the Police Regulations, Bengal, Vol. I.

(3.) Sec. 29 of the Police Act 1861 is that every police officer shall be liable, on conviction before a Magistrate to a penalty not exceeding three months' pay or imprisonment with or without hard labour for a period not exceeding three months or to both if he is found guilty of any violation of a lawful order made by the complaining authority. That is a summons case as defined in clauses (v) and (w) of section 4 of the old Code of Criminal Procedure, 1898. The Police Act of 1861 has not prescribed any special procedure for trial of an offence under section 29 of the Act. Under section 5 (2) of the old Code of Criminal Procedure, 1898 the procedure for trial of a summons case has therefore to be adopted for trial of an offence under section 29 of the Police Act. Chapter 20 of the Code prescribe the procedure for trial of summons case by a Magistrate. A trial commences following the procedure laid down in section 242. When an accused in a summons case appears or is brought before a Magistrate, the Magistrate has to state the particulars of the offence of which he is accused to him and is required to take his plea. If the accused pleads guilty he may convict him on that plea. If he does not so plead the learned Magistrate has to adopt the procedure laid down in section 244 by taking evidence. In the instant case the learned Magistrate asked the officer - in - charge, Sri Ghatak to show cause why he should not be punished under section 29 of the Police Act. The said officer on receipt of such notice submitted a written show-cause. The learned Magistrate on perusal of the said show-cause in the absence of the accused has made the following order on 4.4.73: