PRAMATHA NATH MUKHERJEE Vs. STATE

JUDGEMENT

(1.) The petitioner has been convicted tinder Section 323 of the. Indian Penal Code by the Additional Chief Presidency Magistrate of Calcutta and sentenced to pay a fine of Rs. 50/-, in default, to suffer rigorous imprisonment for one month.

(2.) The prosecution case briefly stated is that on the 23rd February, 1956, an Inspector of the Collection Department of the Calcutta Corporation proceeded to No. 1, Prannath Sen Lane, accompanied by bailiffs to execute a distress warrant. It is said that the petitioner, an occupier of the premises, resisted execution and abused the Corporation staff and caused hurt to one of the bailiffs. As the result of investigation consequent on an information lodged, the police submitted a charge-sheet under Section 332 of the Indian Penal Code, The Additional Chief Presidency Magistrate took cognisance but on perusal of the papers and documents filed before him along with the charge-sheet, came to the conclusion that the case was one under Section 323 and not Section 332 of the Indian Penal Code. He accordingly proceeded to try the charge under Section 323 in accordance with the provisions of Chapter XX of the Code of Criminal Procedure.

(3.) The only point urged in the case is that the learned Magistrate erred in Jaw in trying the accused under Section 323 of the Indian Penal Code alter having discharged him in respect of an offence under Section 332 of the Code. The contention is that under the provisions of Section 251-A (2) of the Code of Criminal Procedure, the Magistrate is bound to discharge an accused parson if upon a consideration of all the documents referred to in Section 173 find after such examination of the accused as the Magistrate thinks necessary and upon hearing the defence and the prosecution, he considers the charge to be groundless. In other words, when a charge triable under the warrant case procedure under Chapter XXI of the Code of Criminal Procedure is found to be ground-less, the Magistrate is bound to discharge the accused and leave him to be proceeded against, if at all, in an independent proceeding under the provisions of Chapter XX of the Code. Mr. Ghosh contends that the conviction in the present case having been had as the result of a trial held in disobedience of the provisions of Section 251-A (2) is bad and requires to be set aside.