NIRANJAN BHUYAN Vs. STATE,

JUDGEMENT

(1.) THE petitioners were convicted by the first class Magistrate Sadar in G.R. case No. 579 of 1957 under section 147 I. P. C., and sentenced to pay a fine of Rs. 100 each. Their appeal to the Sessions Judge proved unsuccessful. Hence they have come up in revision. Three other persons who had also been charged under section 147 I. P. C., before the Magistrate were given the benefit of doubt and acquitted by him.

(2.) THE case against the petitioners was that they along with 5 others went to the Nirala Restaurant on the night of 22.2.1957 and took food, that when the bill was prepared by P. W. 2 Nanigopal Roy and presented to them by the server P. W. 3. Prafulla Chandra Saha, they got furious considering the bill to be exorbitant and tried to leave the Restaurant without making any payment. When P. W. 2. who was in charge of the cash and bills asked them to make payment, they assaulted P. W. 2, P. W. 3 and also the cook and started throwing away chairs and tables and radio set causing damage. It was also stated that they took away cash. But they were not charged Or convicted for that. The owner of the Restaurant was not present at the time. As soon as he returned and learnt about the occurrence be went to the kotwali police station and lodged the F.I.R. at 11 -45 P.M. implicating the 4 petitioners and another Gopal Dutta. Then there was police investigation by P. W. 8 and charge -sheet was filed against petitioners 2 -4 as well as the 8 others who were acquitted by the Magistrate. No charge -sheet was filed against Niranjan Bhuiya, petitioner No. 1 herein. The case was eventually transferred to the file of Sri K. P. Dutta, first class Magistrate. On 24.3.1958 Sri K. P. Dutta after reading the charge -sheet, the F.I.R. and the police diary ordered issue of process against petitioner No. 1 also saying that the name of Niranjan Bhuyan found a prominent place in the F.I.R. itself, that the evidence recorded by the police justified process being issued against him also and that the Court was unable to agree with the police that there was no direct evidence against him. Thus the case proceeded against all the 7 persons and charges were framed under Section 147, I.P.C. Eight prosecution witnesses were examined, four of whom were eye -witnesses. On a consideration of the evidence, the Magistrate found the case proved against the 4 petitioners and convicted and sentenced them as stated above. The learned Sessions Judge after a detailed examination of the oral evidence also found in the appeal that the case was proved against the 4 petitioners and he confirmed the conviction and sentence.

(3.) NOW in revision it was argued that the Magistrate was wrong in perusing the police diary in order to issue summons against petitioner No. 1, that taking cognisance against petitioner No. 1 must be treated as having been done under section 190 (1) (c) Criminal Procedure Code, that therefore the Magistrate ought to have informed him under section 191 Criminal Procedure Code, that he was entitled to have the case tried by another Court and that the failure to follow the statutory provision in section 191 Criminal Procedure Code, vitiated the proceedings not only against petitioner No. 1, but against all the petitioners. It was also argued that on the evidence adduced, the lower Courts were wrong in finding the petitioners guilty under section 147 I. P. C.