SUDHINDRA KUMAR ROY Vs. EMPEROR

JUDGEMENT

(1.) In this case the two appellants before us were put on their trial before a Special Magistrate appointed under Ordinance 11 of 1931 on, charges under Section 307,I.P.C, and Clause (e), Section 19, Arms Act. The case against the two accused is this: On 13 October 1930 at a certain ferry ghat in Jamalpur the complainant with another constable saw four men getting into a boat. They went down there and endeavoured to follow them. Thereupon the four men went up. Each of the two accused was among those four and each of them when he got to the top of the ferry ghat and saw that they were being followed by the complainant and his companion fired a revolver-one shot each from the top of the ferry ghat at their pursuers. The other two men ran away and these two men ran off after firing and were followed. They again fired in the course of the chase and the firing is said to have been made by putting their hands behind them-whatever it may mean. It appears also that the complainant had a revolver and fired some shots. No bullets were however found and nobody was hit. The Magistrate came to the conclusion that both the charges had been proved against both the accused and he convicted them and sentenced each of them to four years rigorous imprisonment under Section 307, I.P.C., and to a further year's rigorous imprisonment under Section 19(e), Arms Act. On this appeal, Mr. S.K. Basu for both the appellants has contended before us, first, that there is an objection to the jurisdiction of the trying Magistrate; and, secondly, that the identification of the two accused before us as the persons who had fired is unsatisfactory. He has taken a third point also to the effect that, if the evidence against the accused is believed, the elements necessary to make out an offence under Section 307, I.P.C., are not sufficiently proved.

(2.) We have, first of all, to examine the objection as to jurisdiction. The form in which that objection was first taken before us was this: By Section 34, Ordinance 11 of 1931, it is provided that: No direction shall be made under Section 30 for the trial of any person by a Special Magistrate for an offence for which he was being tried at the promulgation of this Ordinance before any Court.

(3.) The date of the promulgation of this Ordinance was the last day of November 1931. It was said by Mr. S.K. Basu that in this case the accused were arrested on 14 November 1930, that they were put before a Magistrate and the usual inquiry held, and that it resulted in their commitment to the Sessions on 11 July 1931. Thereafter, certain bail applications were made and rejected by the Sessions Judge. On 19 September 1931, the case was transferred to the Fourth Additional Sessions Judge and, in November, certain applications for classification having been made to this learned Judge, and having been rejected, the case came on before him for trial on 18 January 1932. The accused were called upon to plead and they pleaded not guilty. The learned Sessions Judge began empanelling the jurors but, owing to certain challenges having exhausted the number of jurors present, the jurors were not able to be empanelled on that date. Consequently, the hearing was adjourned till 1 March 1932. On 28 April 1932 the direction of the Local Government was made purporting, to be under Section 30, Ordinance 11 of 1931. In these circumstances, Mr. Basu contended, first of all, that although the case was not taken up by the Sessions Judge until 18 January 1932, for trial under Section 271, Criminal P.C, nevertheless the phrase in Section 34 of the Ordinance "for which he was being tried" was a phrase which would include the commitment proceedings, the stage of inquiry prior to the commitment, and therefore this case could be brought directly within the opening words of Section 34. I am of opinion that it is reasonably clear that the commitment stage is not included by the phrase "for which he was being tried at the promulgation of this Ordinance. The trial had not begun until after the order of commitment had been made, the Sessions Court not having seisin of the case. In my judgment that point in that form cannot be made good.