SUCHANDRA KUMAR SAMANTA Vs. KING

JUDGEMENT

(1.) This Rule was issued on the District Magistrate of Howrah to show cause why proceedings under Sections 465/109, Penal Code pending in the Court of Mr. Ghatak should not be transferred to some other Court. Two persons, Pramatha Harabab and Haradhan Banerjee were summoned under Section 417, Penal Code on a complaint of one Amulya Charan Harabab, filed on 26th July 1948. After the case was transferred to Mr. Ghatak for trial, several witnesses were examined and the present petitioner Suchandra Kumar Samanta was actually examined as a witness on 28th April 1949. On 6th June, an application appears to have been filed on behalf of the complainant that Suchandra and another person should be summoned to take their trial. The order passed by the Magistrate on 6th June does not indicate that the learned Magistrate did read this petition carefully for he appears to have read it only as a petition for examination of the lawyer Bejoy Krishna Roy Choudhury. On 29th June, he discussed the question "whether P. W. 9, Suchandra Kumar Samanta should stand his trial after what has transpired in evidence" and said,

(2.) The first question for consideration is whether the Magistrate before issuing summons against the present petitioner under Sections 465/109, Penal Code had taken cognisance of the case under Section 190 (1) (a), Criminal P. C. or under Section 190 (1) (c), as contended by Mr. Sudhansu Sekhar Mukherji, on behalf of the petitioner, or was merely acting under Section 351, Criminal P. C. without having taken cognisance of the case at all under Section 190 (1), Criminal P. C.

(3.) There has been some divergence of judicial opinion on this question whether when a person is summoned by the Magistrate on the basis of the evidence he has already heard in the case, he is to be considered as to have taken cognizance under Section 190 (1) (a) or under Section 190 (1) (c), Criminal P. C. In the case of Khudiram Mookerjea v. The Empress, 1 C. W. N. 105, the view was taken that the Magistrate in such a case was proceeding under Section 191 (c), Criminal P. C. which is the same as 190 (1) (c) of the present Code. In a later case reported Dedar Bux v. Syamapada Malakar, 18 C. W. N. 921: A. I. R. (1) 1914 Cal. 801: (15 Cr. L. J. 546) Sharfuddin and Teunon JJ. appeared to have taken a different view. In this case a complaint had been filed against several persons under Sections 842 and 363, Penal Code. The Magistrate ordered the complainant to prove his case but before the date fixed the complainant filed a petition for withdrawal of the complaint. The Magistrate thereafter examined witnesses on the date fixed and found that there was no satisfactory evidence against the persons complained against, but summoned two other persons under Sections 342, 368 and 853, Penal Code. The Court held that cognisance had been taken under Section 190 (1) (a) of the Code.