JYOTIRMOYEE BOSE Vs. BIRENDRA NATH PRODHAN

JUDGEMENT

(1.) This Rule is directed against an order of acquittal passed by Shri S.K. Ghosh, Magistrate 1st Class, Alipur, on the 26th November, 1957 under Section 251-A (11) of the Code of Criminal Procedure. The main argument in support of this Rule is that the learned Magistrate, having framed a charge, should have exhausted all processes for attendance of witnesses in proof of the charges.

(2.) In order to understand this argument it is necessary to set out certain dates. On the 14th of January, 1955 a complaint was filed before the Sub-Divisional Magistrate, Alipore, against the opposite parties alleging offences under Sections 143 and 379 of the Indian Penal Code. Upon this the learned Sub-Divisional Magistrate ordered the police of Joynagar police station to take cognisance and to treat the petition of complaint as the 'First Information Report' in the case. Thereafter following an investigation a charge-sheet was filed on the 28th March, 1955 against the opposite parties under Sections 143 and 379 of the Indian Penal Code. Then on the 16th of September, 1957 charges were framed against the opposite parties and 25th and 26th November, 1957 were fixed for the production of the prosecution witnesses. Neither on the 25th nor on the 26th of November, 1957 were any witnesses on behalf of the prosecution present. On the 26th November, 1957 the learned Magistrate acquitted tile opposite parties under Section 251-A (11) of the Code of Criminal Procedure, as he held that there was no point in proceeding to examine the opposite parties under Section 342 of the Code of Criminal Procedure, and since there was no evidence in support of the charge, they were all accordingly acquitted.

(3.) In the present rule Dr. Das Gupta argued that the learned Magistrate acted illegally and without jurisdiction in passing the order of acquittal without enforcing attendance of the witnesses. This argument is apparently based on the several decisions on the rights of a Magistrate to acquit without complying with Sections 256 and 257 of the Code of Criminal Procedure.