JWALA PRASAD Vs. STATE

JUDGEMENT

(1.) MR. J. N. Varma, for the petitioner, says that the learned Sessions Judge of Monghyr acted without jurisdiction in directing the learned Sub-divisional Magistrate to make a further investigation into the matter and that the learned Sub-divisional Magistrate, in his turn, acted without jurisdiction in not making the investigation himself but in deputing a subordinate magistrate to do so and in acting on the report which the latter submitted. MR. Varma relied on two Full- Bench decisions; one of the Allahabad High Court in 'Manni Lal v. Emperor', AIR 1937 All 305 (F.B.) (A), and another of the Lahore High Court in 'Dhanpat Rai v. Balak Ram', AIR 1931 Lah 761 (B). These decisions are, no doubt, directly in point, and I respectfully agree with them. I find, however, that the order of the learned Sessions Judge was made on the 10/5/1948 and that the complaint made by the Sub-divisional Magistrate was made on the 4/11/1948. Apparently, no appeal was preferred against the order of the learned Sub-divisional Magistrate, and the trial proceeded with interminable slowness for which the petitioner was himself, to some extent, to blame. It appears from the order-sheet that the trial has concluded and that the judgment was ready on the 23/1/1951. The application to this Court was made on the 5/7/1951, and in the intervening five or six months the petitioner had succeeded in keeping away from Court, although attempts were made more than once to secure his attendance. In these circumstances it would, I think, be wrong for me to interfere. The petitioner must surrender in the court of the learned trying magistrate and submit to the judgment. If he is convicted and sentenced and prefers an appeal, it will, of course, be open to him to take the point that the trial was without jurisdiction, I do not, however, think that I ought to decide this point now. A question may obviously arise as to whether what has occurred is not a mere irregularity and is cured by the provisions contained in Section 537A of the Code of Criminal Procedure. Also, of course it may be that the petitioner will be acquitted. The application is disposed of accordingly.