ASUTOSH DAS GUPTA Vs. PURNA CHANDRA GHOSE

JUDGEMENT

(1.) This Rule was issued on the application of one Asutosh Das Gupta calling on the District Magistrate of Dacca and on the opposite parties to show cause why the order of the learned Sessions Judge setting aside the convictions and sentences of the opposite parties and directing a retrial should not be set aside, or why such other and further order should not be made as to this Court may seem fit and proper.

(2.) The facts which have given rise to this application are as follows: It appears that on the complaint of the petitioner, the opposite parties, namely, one Purna Chandra Ghose, and Satis Chandra Roy, were put upon their trial before the Deputy Magistrate at Dacca on charges under sections 500 and 501, Indian Penal Code, respectively. The trial took a very long time and at the expiration of nearly seven months, the learned Deputy Magistrate, by his judgment dated the 26 April, 1922, convicted the opposite party No. 1 under Section 500, Indian Penal Code, and sentenced him to simple imprisonment for three months and also to pay a fine of Rs. 500 in default, to undergo simple imprisonment for six months more, and he convicted the opposite party No. 2 under sections 500 and 501, Indian Penal Code, and sentenced him to pay a fine of Rs. 200, in default, to undergo simple imprisonment for three months under Section 501 and passed no separate sentence under Section 500, Indian Penal Code. The opposite parties thereupon preferred an appeal to the learned Sessions Judge of Dacca. The latter by his judgment, dated the 20 May 1922, held that there was no evidence to support a charge under Section 500, Indian Penal Code, so far as the opposite party No. 2 was concerned, and he further held that the opposite parties could not be tried together legally, and he, therefore, ordered a retrial of the opposite parties separately, that is to say, of the opposite party No. 1 under Section 500, Indian Penal Code, and of opposite party No. 2 under Section 501, Indian Penal Code.

(3.) The orders referred to above were made by the learned Sessions Judge under the provisions of Section 423, Criminal Procedure Code. That section enacts that the Appellate Court shall peruse the record of the appeal, and after hearing the appellant or his Pleader, if he appears, and the Public Prosecutor, if he appears, and in the case of an appeal under Section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may, in an appeal from an order, of acquittal, reverse such order and direct further enquiry, or, in an appeal from a conviction, reverse the finding and sentence, acquit or discharge the accused or order him to be re-tried by a Court of competent jurisdiction, subordinate to such Appellate Court. It is not necessary for us to quote the remaining words of the section.