CHANDRAMONI JENA Vs. BHRAMAN BISWAL

JUDGEMENT

(1.) The petitioners have been convicted under Sections 380 and 418, Penal Code, for having entered into a house and carried away the stock of paddy and other properties stored therein.

(2.) The complainant and the accused advanced rival claims to that house which, it must be made clear, was not ancestral house of late Radhakrushna Jena of whom the complainant is the son-in-law but is the self-acquired house as distinct from the ancestral one. The ancestral house and other properties had admittedly been gifted to the daughter, namely, the complainant's wife, and there is no dispute about it. The dispute centres round the right and possession of the self-acquired house in which Radhakrushna Jena lived at the time of his death. The consideration of this revision involves the question whether there was illegality or irregularity causing prejudice to the petitioners in their defence Chandramoni Jena and Ors. vs. Bhraman Biswal (11.08.1950 -ORIHC) Page 2 of 5 in the trial.

(3.) The circumstances are that the trial was held by one Sri M. B. De, Magistrate, before whom the prosecution witnesses had been examined, charge had been framed, and cross-examination after charge had been completed. At that stage, that Magistrate was transferred, and the case came to the file of one Sri S. K. Das, Magistrate. This transfer no doubt entitled the accused persons to claim that the witnesses already examined be resummoned and reheard. They exercised that right at the commencement of the trial before Sri S. K. Das. He allowed the plea and directed that the prosecution witnesses should be resummoned and reheard. Accordingly, he summoned the prosecution witnesses for 30-4-1949. On 30-4-1949, however, he was already under order of transfer and he adjourned the case to 20-5-1949. On the latter date, Sri S. S. Roy took charge of the case. He recorded an order to this effect: "The accused persons pray that the accused Dibyasingha Jena, who is dead, wanted de nivo trial, when the case was transferred to Mr. S. K. Das's Court, but they do not want this case to be tried de novo. The accused persona to go on bail of Rs. 100 each. Posted to 18-6-1949 for statement of the accused and defence. The accused to take steps at once to summon the D. Ws. and no further adjournment to be granted."