AZIZUR RAHMAN Vs. EMPEROR

JUDGEMENT

(1.) This is a Rule calling upon the District Magistrate of Chittagong to show cause why the conviction and sentence passed on the petitioners should not be set aside or such other or further order made as to this Court may seem fit and proper.

(2.) The facts, shortly stated, are as follows: The petitioners are seven in number and they together with some other persons were put upon their trial before Mr. S.P. Banerjee, Deputy Magistrate with 2nd Class powers at Chittagong, under Section 147, I.P.C. The Petitioners 1 to 4 were all charged under Section 325, I.P.C., and the Petitioner No. 7 was further charged under Section 324, I.P.C. The case for the prosecution was that one Basarat Ali was in possession of certain lands. On the 30 December 1923, Basarat's cousin, Rufia Khatun, was plucking brinjals from Basarat's land. Thereupon several persons came up and asked her to leave the field, but she refused to do so. Thereafter a large body of men, including the present petitioners, came upon the land armed with lathis and spears and assaulted Rafia Khatun. It is alleged that the Petitioner No. 7 wounded her with a spear and that three persons who had come to help Rafia Khatun were assaulted and wounded. The defence of the petitioners was that they were not guilty, that they had been falsely implicated in this case on account of enmity and that the prosecution story was false and further that Basarat Ali was not in possession of the lands in question. It appears that before the prosecution witnesses were examined, the complainant filed a petition praying for withdrawal of the case, but on the 6th April 1925, the learned Magistrate instead of disposing of the petition for withdrawal made the following order: "Complainant has filed a petition for withdrawing the case. The petition was forwarded to S.P. who is dealing with it. Put up, on 20 April 1925. Accused as before. Witnesses will appear when required." On the 20 April 1925, the Magistrate passed the following order: "S.P. has not given his assent to the withdrawal of this case; it will, therefore, proceed. Issue summons on the prosecution witnesses. Accused as before. Adjourned till the 6 May 1925." Thereafter the case came on before the Magistrate on the 19 May 1925, when four prosecution witnesses were examined-in-chief. The Sub-Inspector of Police was not present and the Magistrate came to the conclusion that it was a case under Section 148 of the I.P.C., an offence which is triable only by a 1 Class Magistrate. He thereupon submitted the record of the case to the Sub-Divisional Officer for necessary orders. On the next day the Sub- Divisional Officer passed the following order: "There will not be any miscarriage of justice if the case be disposed of under Section 147, I.P.C. The case is pending for a year and a half. I return the record". On the same day, i.e., the 20 May 1925, the trying Magistrate passed the following order: "Accused Asad Ali, will remain on bail of Rs. 300. He will appear when called for. Examined all the 12 accused present. At this stage accused files a petition praying for framing charge under Section 148, I.P.C. under which this case comes. Court Sub- Inspector is of the same opinion. An offence under Section 148, I.P.C., is triable by a 1 Class Magistrate. I submit the record before the District Magistrate for necessary orders. Accused as before." The record having been laid before the District Magistrate, he passed the following order on the same day: "There is no 1 Glass Magistrate available. Case will proceed." Thereafter charges were framed under Secs.324 and 147, 325, I.P.C. as indicated above. By his judgment, dated the 27 July 1925, the learned trying Magistrate held that the charge under Section 325, I.P.C., against the Petitioners 1, 2 and 4 had not been substantiated and he convicted all the petitioners under Section 147, I.P.C., and Petitioner No. 7 was further convicted under Section 324, I.P.C., All the petitioners were sentenced under Section 147, I.P.C., to undergo rigorous imprisonment for three months and Petitioner No. 7 was further sentenced to three months rigorous imprisonment under Section 324, I.P.C., Against the conviction and sentence the petitioners appealed to the District Magistrate, but the appeal was disposed of by Mr. Gupta, Deputy Magistrate, 1 Class with appellate powers. The latter by his judgment dated the 7 October 1925, upheld the conviction, but he reduced the sentence under Section 147 to rigorous imprisonment for six weeks and the sentence under Section 324, I.P.C., to a fine of Rs. 60. Thereafter the petitioners applied to this Court and obtained the present Rule on revision.

(3.) It has been contended before us that the learned trying Magistrate ought not to have referred the complainant's petition for withdrawal to the Superintendent of Police, inasmuch as the effect of such reference was that the Magistrate allowed the Superintendent of Police to determine whether the offences should be allowed to be compounded and the case withdrawn or not, when it was his duty to dispose of the petition for withdrawal. In the second place, it has been contended that the trying Magistrate having been of opinion that on the evidence the case was one under Section 148, I.P.C., he had no jurisdiction whatsoever to hold the trial. And lastly, it has been contended that the appellate Court has failed to consider the evidence, in the case, especially the evidence of the defence witnesses.