NIRANJAN BHUYAN AND ORS. 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 he 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 3 others who were acquitted by the Magistrate. No charge -sheet was filed against Niranjan Bhuiya, petitioner No. 1 herein.

(3.) ALL these points were urged before the Sessions Judge, but he did not accept the contentions and dismissed the appeal. With regard to the first contention that the Magistrate was wrong in perusing the Police diary for issuing process against petitioner No. 1 who was not charge -sheeted by the police, my attention was drawn to the decision Noor Mohammarl v. : AIR1959Cal276 . In that decision the Calcutta High Court was of opinion that though Section 172 Cr.P.C., provided that materials to be found in police diaries may be used by the Court to and it in an enquiry or trial, the Court can for the purpose of framing a charge consider only the documents referred to in Section 173 Cr.P.C., and should not be influenced by the case dairy in framing the charges. They therefore quashed the charges in the said case. With all respect, I am unable to agree with such a view.