AJIT KUMAR DAS Vs. MATHUR CHANDRA PAL

JUDGEMENT

(1.) In respect of an offence committed on 22.7.76 opposite party No. 1 Mathur Chandra Pal filed a petition of complaint in the Court of S.D.J.M. at Chandernagore on 22.7.1976 alleging commission of the same by the petitioner before us under sections 323 and 355 of the I.P.C. The complainant examined altogether four witnesses in support of his case. The learned Magistrate trying the case had initially; adopted the procedure for summary, trial of offences. When the fourth witness was to be examined by an order he adopted the procedure prescribed for trial of summons cases. Three witnesses earlier examined by the complainant were not, however, recalled according to the section 260(2) Crimial P.C. Eventually by his order dated 21.1.82 Judicial Magistrate, 1st Class, Chandernagore, to whom the case was transferred for hearing and disposal, found the petitioner before us Ajit Kumar Das guilty of an offence under section 355 I.P.C. only Convicted him of the same and ordered him to pay a fine of rupees one hundred, in default to suffer K.I. for two months. The learned Magistrate further order that the fine, if realised, be paid to the complainant.

(2.) Because of the provisions of section 376(C) of the Crimial P.C. m appeal against the order could be filed. Under section 397 of the Crimial P.C. the petitioner accused could file a revisional application and. he had his choice of forurn. He could file his revisional application either in the High Court or in the Court of Sessions Judge. The accused petitioner chose, however, to file his revisional application before the Sessions Judge Hooghly. He contended virgoucously before the learned Sessions Judge that there was gross violation of the mandatory provisions of section 260(2) of the Crimial P.C. and as such the judgment rendered against the petitioner was illegal. The learned Sessions Judge, however, overruled the contention as he found that P.Ws. 1, 2 and 3 whose recall was prayed for on account of the learned Magistrate's adopting the procedure prescribed for trial of summons cases were cross-examined in extensor and as such there was no failure of justice. The learned Sessions Judge took his stand on the provisions of section 465 Crimial P.C. and thought that barren legalism could not overrule substantial justice which, was done or in other words there was no failure of justice. The accused being unsuccessful in the revisional application before the Sessions Judge has come up before us filling the present petition under section 401 read with section 482 Cr.P.C.

(3.) Sec. 399(3) scares us in the face at the very outset. It has been provided therein :