UPENDRA CHANDRA DEY AND ORS. Vs. STATE

JUDGEMENT

(1.) THESE thirteen petitioners have been committed to the Court of Session for trial under various sections of the Indian Penal Code including Sections 302/149. They have moved for quashing of the order of commitment made against them.

(2.) THE case arises out of a very unfortunate and tragic incident which happened as early as the 16th July, 1949 in which several police officers received injuries, some of them grievous, and one hapless Sub -Inspector actually lost his life. The case has a short historical back -ground culminating in this commitment order. These petitioners along with a very large number of other accused were arrested in connection with that occurrence and prosecution was started against them. They were tried by the then District Judge of Upper Assam Districts who was appointed Special Judge under the Assam Special Courts Act, 1950 (Act 19 of 1950). The Special Judge framed charges only against 58 of the accused and discharged the rest, including the petitioners in the present case, except Nirod Baran De. Eventually the trial ended in the conviction of only 34 of the accused and the acquittal of the rest, the petitioner Nirod Baran also having been acquitted. The Government appears to have been satisfied with the decision of the Special Judge and did not move or appeal against the order of discharge and acquittal. The result was that the order passed by the Special Judge in favour of these petitioners had become final.

(3.) IT is next argued that the prosecution of the petitioners amounts definitely to an abuse of the processes of the Court, inasmuch as twelve of the petitioners on the evidence given by the prosecution were discharged, evidently because the learned Special Judge found no prima facie case of any offence having been established against them; while one of them, he actually acquitted on consideration of the evidence. It is pointed out that Government were completely satisfied with this order. It may be that the Special Judge was found to have no jurisdiction to try the accused. But the fact cannot be ignored that the Special Judge was also the District and Sessions Judge and if a Judge of that position and experience found that there was prima facie no evidence against the accused, it would be too much to say that the Magistrate committing the accused had exercised better judgment and discretion in the matter or that the trial of the petitioners would be fruitful of any good result except entailing harassment and hardship to them. The argument undoubtedly is very impressive and I should think, that technical difficulties apart, this aspect of the case should have considerably weighed with the Government when directing the prosecution of the petitioners. But it will have to be seen to what extent if any, we can exercise the powers which have been recognized to exist under Section 561A of the Code.