HAFIZAR RAHMAN Vs. AMINAL HOQUE

JUDGEMENT

(1.) References Nos. 60 and 61 of 1940 have been made to this Court by the learned Sessions Judge of Chittagong with his letter, dated 14 March 1940. They arise with reference to two accused persons who were convicted respectively in two separate cases under Secs.427 and 447, Indian Penal Code. In the first of these cases Nurul Huq was convicted by Rai Saheb Aparna Charan Ray, Honorary Magistrate of Chittagong on 5 February 1940 and sentenced to pay a fine of Rs. 40 and in the second case Aminal Haque was convicted by the same Honorary Magistrate on the same date and sentenced to pay a fine of Rs. 25. These two references have been heard together with a rule issued in Criminal Revision Case No. 437 of 1940 as the main points for consideration in the two references and the rule are similar.

(2.) In the first of these cases a man named Hafizar Rahman had filed a complaint on 19th February 1939 against certain persons in respect of alleged offences under Secs.427, 447 and 352, Indian Penal Code. The main allegation was to the effect that the accused persons had committed mischief in respect of the complainant's land while they were engaged in cutting a khal. An enquiry was held under the provisions of Section 202, Criminal P. C., and thereafter one of the accused persons, Aminar Rahaman, was summoned. He appeared on 9 June 1939 and the case was then transferred to the learned Honorary Magistrate for disposal. Aminar Rahaman died on 15 August 1939. Thereafter, on 18 August 1939, the complainant filed a petition in which he stated that the other accused persons were taking advantage of Aminar Rahaman's death and were threatening to take possession of the complainant's land by force. He also stated that there was ample evidence against all the accused persons and in these circumstances he asked that the other accused might be summoned. The learned Honorary Magistrate then directed that one of the other accused persons, Nurul Haque, should be summoned. The case then proceeded to trial and this person was duly convicted under Section 427, Indian Penal Code.

(3.) The second case related to a portion of the same land that was in dispute in the case under Section 427, Indian Penal Code. It arose with reference to a complaint filed on 17 April 1939 by Hafizar Rahaman against eight accused persons in which it was alleged that they had committed offences on 12 April 1939, under Secs.447, 504 and 143, Indian Penal Code. In this case it was alleged that the accused persons had trespassed into plot No. 7323, which was in the possession of Hafizar Rahaman, and had encroached on the same by putting a fence round it, ploughing it and planting trees thereon. In this case also the learned Sub-divisional Magistrate directed an enquiry under Section 202, Criminal P. C., and he summoned Aminar Rahaman on 1 June 1939. Thereafter, on 9 June 1939, he transferred the case to the learned Honorary Magistrate for disposal. After Aminar Rahaman's death on 15 August 1989 the complainant filed a petition similar in terms to the one which was filed in the case under Section 427, Indian Penal Code, with the result that the learned Honorary Magistrate summoned one of the other accused persons, Aminal Haque, who was in due course convicted under Section 447, Indian Penal Code. In referring these two cases to this Court under the provisions of Section 438, Criminal P. C, the learned Sessions Judge of Chittagong expresses the opinion that in the first case the findings recorded by the learned Honorary Magistrate were insufficient to warrant a conviction, whereas in the second case he was of opinion that the accused had been convicted on inadequate evidence. The main ground, however, upon which the learned Judge referred these two cases was that, in his view, the learned Honorary Magistrate had no jurisdiction to summon persons against whom process had not been issued by the Sub- divisional Magistrate before the cases were transferred to him. In this connexion, he refers to Section 204, Criminal P. C., and states that: It would prima facie appear that the case is, for issue of summons upon the accused, to go back to the file of the Magistrate who took cognizance of the offence. It would, therefore, also seem that a Magistrate who has not taken cognizance of an offence has no jurisdiction to summon an accused person.