AMULYA PAL Vs. BHUPEN SARKAR

JUDGEMENT

(1.) This is an application under Art. 227 of the Constitution read with Ss. 401 and 482 of the Cr. P.C. The facts are briefly (as) follows : The petitioner filed a petition of complaint against the opposite parties before the Sub-Divisional Judicial Magistrate, Barrackpore, and on the basis of which complaint case No. 2217/75/T1455/75 was initiated. After trial Sri N. Ghosh learned Sub-Divisional Judicial Magistrate, Barrackpore, by his judgment and order dt. 19-12-79 acquitted the accused persons and on being prima facie satisfied that the case has been falsely instituted issued a notice u/s. 250 of Cr. P.C. against the present petitioner to show cause why he should not pay compensation to the accused persons. The petitioner had shown (cause) to the aforesaid notice. Sri S. R. Banerjee, learned Judicial Magistrate, who succeeded Sri N. Ghosh, by his order dt. 11th Aug., 1980 directed the present petitioner to pay a sum of Rs. 200/- each to each of the accused persons for filing a false case and in default the petitioner was directed to suffer simple imprisonment for 20 days.

(2.) Being aggrieved the petitioner moved the learned Sessions Judge, Alipore in revision Sri N. K. Banerjee learned Additional Sessions Judge, 7th court, Alipore, by the order dt. 29-11-80 in Cr. Motion No. 207/80 dismissed the revision petition. Being aggrieved the present petition under Art. 227 of the Constitution read with Ss. 401 and 482 of the Cr. P.C. has been filed.-

(3.) At the time of the hearing the learned Advocate appearing for the petitioner has urged only one point. It is submitted by him that the impugned order awarding penalty of Rs. 200/- to each of the accused opposite parties is illegal and ultra vires because the magistrate who heard the case did not impose penalty. He has referred to the decision of our High court reported in AIR 1929 Cal 762 Raja Ram Majhi v. Panchanan Ghosh. He has submitted that the words "magistrate by whom the case is heard" must be the magistrate who acquitted the accused and was of opinion that the compensation should be awarded subject to the complainant showing cause; but if the magistrate, who acquitted the accused and issued show cause notice was transferred before the passing of the final order and his successor awarded compensation, the order was bad as the successor had not heard the case. It is, therefore, contended that the impugned order not having been passed by Sri N. Ghosh, Sub-Divisional Judicial Magistrate who acquitted the accused opposite parties and issued the show cause notice but by his successor Sri S. R. Banerjee, the impugned order is ultra vires and without jurisdiction and this court should invoke its inherent jurisdiction conferred under S. 482 Cr. P.C. to correct the palpable mistake committed by the magistrate and set aside the impugned order being without jurisdiction, ultra vires and illegal.