MOHIMA RANJAN ROY Vs. STATE

JUDGEMENT

(1.) This Rule is directed against the order of Sri M.S. Banerjee, Magistrate, First Class, Burdwan dated 19-1-66 whereby he directed that the trial which was being proceeded against the accused petitioners should be switched on to an enquiry under Chapter XVIII of the Code of Criminal Procedure.

(2.) The facts are that the opposite party complainant filed a petition before Sri S. Sarkar, First Class Magistrate, Burdwan against the accused petitioners alleging that they had committed offence under Sections 147, 148, 447, 379, 504 and 342 of the Indian Penal Code. It was alleged inter alia that the accused persons along with a number of men formed into an unlawful assembly and entered the house of the complainant being armed with deadly weapons and one of them tied his hands and feet with a gamcha and the petitioners carried away some paddy from the house of the complainant. Tbis petition of complainant was sent by the learned Magistrate to the Officer-in-Charge of Bhatar Police Station with a direction that it should be treated as a First Information Report and it was also directed that the matter should be investigated. Ultimately the police submitted a final report and it was followed by a naraji petition before the court of the learned Magistrate on 7-6-65 and a judicial enquiry was held and the petitioners were ultimately summoned to stand trial under Section 382 of the Indian Penal Code. Thereafter the case was transferred to the file of Sri M. S. Banerjee, Magistrate First Class, Burdwan who examined some witnesses. On the 15th December 1965 a petition was filed before him by the prosecution stating that the evidence really disclosed a case under Section 395 of the Indian Penal Code and therefore an enquiry should be made for committal under Chapter XVIII of the Code. Thereafter on the 19th January 1966 a direction was given that the case would proceed accordingly.

(3.) In this Rule we are concerned with two orders passed by the learned Magistrate. On 15-12-66 the learned Magistrate examined four of the prosecution witnesses in chief. At that stage a petition was filed on behalf of the prosecution stating that there were ingredients of offence under Section 395, I. P. C. and the case should proceed under Chapter XVIII of the Code of Criminal Procedure. This matter was adjourned till 19-1-66 as stated before and on this date the learned Magistrate came to a decision after hearing both the sides that the case would be proceeded under Chapter XVIII of the Code of Criminal Procedure. As such he directed that on 23rd February 1966, the mineses for the prosecution who were examined in chief and partly cross examined should further be cross examined by the defence. He also directed that the remaining prosecution witnesses should also be examined, presumably under the procedure as laid down in Chapter XVIII of the Code.