BON BEHARI MONDAL Vs. BHUSAN CHANDRA BARUI

JUDGEMENT

(1.) This Rule is against an order dated the 16th May, 1968, passed by Sri A.R. Bhattacharya, Magistrate, 1st Class, Diamond Harbour, 24-Parga-nas discharging the accused in case No. G. R. 359 of 1967 under Section 10 of the West Bengal Gambling and Prize Competitions Act (Act XXXII of 1957), 1957.

(2.) The facts leading on to the preterit Rule can be put in a short compass. A first information was lodged on 15-3-67 by the de facto-complainant, Bonbehari Mondal, at the Sagore Police Station, Diamond Harbour against seven accused persons including the present opposite par-tips alleging that on 14-3-67 at about 9 p. m. the accused were found gambling without license at the mela ground at Companychar with dice and money. Certain alamats viz., one printed dice board, one leather cover, three ten-rupee notes, fourteen one-rupee notes and Rs. 4.40 p. in small changes were also deposited at the thana. On 17-3-67 the accused opposite party No. 1, Bhuban Chandra Barui after being released on bail filed a petition of complaint against the present petitioners and some others under Sections 342 and 232, I. P. C. and the said case, being case No. 444 of 1967, is pending in the Court of Sri H. P. Das, Magistrate, 1st Class, Diamond Harbour. After investigation, a charge-sheet under Section 10 of the Gambling and the Prize Competitions Act, 1957 was ultimately submitted by the officer-in-charge of the Sagore Police Station against seven accused persons and on 15-5-67 when the accused No. 1, Bhuban Chandra Barui, who was on bail, and was present in Court, warrants of arrest were issued against the remaining six accused persons. The case was thereafter transferred to the file of Sri A.R. Bhattacharya, Magistrate, 1st Class, Diamond Harbour for trial on 6-11-67. After several adjournments, 16-2-68 was fixed for evidence when all the accused persons were present excepting Ramudar Singh who was allowed to appear by agent. The trying Magistrate perused the F. I. R. and held that the prosecution was highly irregular as the police did not seize any money or article from the gambling spot and ultimately by his order of the same date he discharged all the accused as there was no case against them and further directed that the articles seized be destroyed and the money be forfeited to the State as unclaimed amount. This order of discharge has been impugned by the de facto-complainant and forms the subject-matter of the present Rule.

(3.) Mr. Binode Behari Halder, Advocate appearing on behalf of the de facto-complainant petitioner has made a twofold submission. He contended in the first place that the order of discharge is unwarranted and untenable because of the absence of any consideration of the case on merits and because of the denial of any opportunity to the prosecution to prove its case by relevant evidence which was available. Mr. Halder next urged that the order of discharge also does not conform to the provisions of Section 251A (2) of the Code of Criminal Procedure and is based upon a non-consideration of all the documents as also of the arguments, which could not be advanced by any of the parties. Mr. Chittaranjan Das, Advocate, appearing on behalf of four of the accused opposite parties has taken a preliminary objection as to the maintainability of the present Rule because the complainant-petitioner had not moved the Sessions Judge at Alipore in the first instance under Section 436 of the Code of Criminal Procedure. Mr. Das has contended in this context that where there is a concurrent jurisdiction where-under the party aggrieved may move either the Sessions Judge or the High Court, the rule of practice as laid down in the various decisions of the different High Courts as also of this High Court is that such an application should be moved in the first instance before the Sessions Judge, as otherwise it would not be maintainable in the High Court. The second contention of Mr. Das is that even on merits the order of discharge which has been impugned is quite a proper order under Section 251A (2) of the Code of Criminal Procedure in the facts and circumstances when the Court below found that the procedure adopted is highly irregular and that there is no case against the accused. Mr. Das has further submitted in this connection that this Court sitting in revision may be pleased not to interfere with an order of discharge, involving questions of facts.