LAWS(GAU)-1963-6-2

AMULYA CHANDRA PAUL Vs. STATE,

Decided On June 18, 1963
Amulya Chandra Paul Appellant
V/S
STATE, Respondents

JUDGEMENT

(1.) THE petitioner herein is an accused in C. R. Case No. 264 of 1960 before Shri K. P. Dutta, first class Magistrate, Sadar. The case was originally pending before the S.D.M., Sadar and it was transferred to Shri K. P. Dutta on 25 -3 -63. On 20 -4 -63 Shri K. P. Dutta examined one P. W. and posted it to 5 -6 -63 for further hearing. Then the petitioner preferred a revision petition to the Sessions Judge for referring the matter to this Court challenging the competency of Shri K. P. Dutta to try the case. But the Sessions Judge refused to make a reference and dismissed the revision petition. Thereupon the petitioner has filed the present revision petition to set aside the order of the learned Sessions Judge and to declare that Shri K. P. Dutta is not competent to try the case.

(2.) THE contention of the petitioner is that Shri K. P. Dutta had ceased to be a magistrate when this case was transferred to him and that therefore he is incompetent to try the case. To deal with this argument, it is necessary to refer to some notifications. Shri K. P. Dutta was first appointed on 15.1.1954 as a temporary A.S.D.O. Sadar by the following notification :

(3.) NOW the argument of the petitioner is that Shri K. P. Dutta was appointed temporarily as A.S.D.O., Sadar until 28.2.1954 by the notification dated 15.1.1954, that he was invested with the powers of a magistrate in virtue of his appointment as A.S.D.O., Sadar, that when the temporary appointment was continued by subsequent notifications he should have been vested afresh with the powers of a magistrate, that otherwise it will have to be deemed that his magisterial powers were impliedly withdrawn under Section 41, Criminal Procedure Code, that thus he was not a magistrate after 28.2.1954, that, in any case, when he was appointed as officiating Deputy Collector with effect from 20.11.1961 and posted as Assistant Chief Electoral Officer which was a post not of the same nature as that of the A.S.D.O., Sadar he ceased to be a magistrate, that since 20.11.1961 he was Assistant Chief Electoral Officer and Deputy Chief Electoral Officer until 25.3.1963 during which period he was not functioning as a magistrate and had thus ceased to be a magistrate, that by the notification dated 11th October, 1962 he was confirmed in the post of Deputy Collector when he was working as Deputy Chief Electoral Officer and when he was not functioning as a magistrate and that, therefore, the next notification, dated 25 -3 -63, by which he was not vested with the powers of a magistrate, but instead it was assumed that he already had the powers and thereby was directed to try criminal cases and to hold Court in the Sadar will not have the effect of vesting him with the said powers and hence, Shri K. P. Dutta was not a magistrate when he began dealing with the present case.