BAL CHAND Vs. KING-EMPEROR

JUDGEMENT

(1.) This is an application by three persons under Section 215 of the Code of Criminal Procedure praying that their commitment to the Court of Session for offences punishable under Secs.120 B and 457 read with Section 381 of the Indian Penal Code be quashed. The learned Counsel for the petitioners has taken three main points in this case: (1) that the pardon that was tendered to Kapur Chand was illegal: (2) that the offence with which the accused are charged does not fall within the definition of house-breaking; and (3) that there was no evidence to warrant the accused being committed to the Court of Session to stand their trial

(2.) As regards the first point urged, Mr. O Neill on behalf of the petitioners says that as the Magistrate had, upon the application of three out of the five accused persons, postponed the case he had become functus officio, and therefore, could not under the provisions of Section 337 of the Criminal P. C. tender pardon to Kapur Chand. He has based his argument on the ground that under Section 526(8) of the Criminal P. C. the Court had to adjourn the case, and having adjourned the case the Magistrate could do nothing in the matter. I am of opinion that there is no force in this contention. Section 337 of the Criminal P. C. does not require that a trial or an enquiry should be in progress when the pardon is tendered. The Magistrate was the only Magistrate who had jurisdiction to enquire into the case and although he had postponed the investigation or enquiry he had not ceased to be the Magistrate who would be or was investigating or enquiring into the offence which the accused persons are said to have committed. My attention has been drawn to the case of Kishori Gir V/s. Ram Narayan Gir [1903] 8C. W. N. 77. I am of opinion that case has no bearing on the question of the competency or otherwise of the Magistrate granting the pardon.

(3.) As regards the second point taken, I have not gone into the facts of the case to see whether the prosecution has made out a case or not but for the purpose of coming to the conclusion whether a charge under Section 457 could or could not be framed against the accused. I have examined the allegation made on behalf of the prosecution against the accused. It is impossible for me to say that upon the statement of facts the Court could not frame a charge under Section 457 read with Section 881. It will be a matter for the Court trying the accused to decide what facts the prosecution have proved to bring the offence, if any, within the purview of that section.