RAMESH PADA MANDAL Vs. KADAMBINI DASI

JUDGEMENT

(1.) In this case the learned Additional District Magistrate of Midnapore made a reference to this Court, on the 11 March 1927, recommending that a certain order passed by Babu Sukesh Chandra Deb Roy, Deputy Magistrate of Midnapore, convicting the accused under Section 323, I.P.C., and letting him off with a warning under Section 562(1A), Criminal P.C., might be set aside and the accused convicted either under Secs.323 or Section 324, I.P.C., and given a suitable sentence. The order of the Magistrate is dated the 28 July 1926.

(2.) This Reference came on before us for hearing on the 5 May 1927. The case appeared on the daily printed defended list and the record in this Court was marked with the word "defended." Mr. Narendra Kumar Basu, Advocate, appeared for the complainant, but, at the time of the hearing of the Eeference, there was no appearance by any learned counsel, or advocate or vakil on behalf of the accused. Having regard to the fact that the record of the Reference before us showed, on the face of it, that it was "defended," we assumed that notice of the reference had been served on the accused, and after hearing Mr. Basu for the complainant we accepted the Reference and altered the conviction from one under Section 323, I.P.C., to one under Section 324, I.P.C., and sentenced the accused to suffer rigorous imprisonment for a period of one year. This order, as stated above, was made by us on the 5 May 1927. Subsequently, i.e., on the 23 May 1927, Mr. S.C. Bose, Advocate, appeared before us on behalf of the accused and drew our attention to the fact; that our order of the 5 May 1927 had been made without hearing the accused and without the accused having been given any notice of the hearing At the Reference before this Court.

(3.) We thereupon made enquiries, and we discovered, on examination of the record, that, although the accused appeared before the Additional District Magistrate on the 21 September 1926, when orders were reserved by the Additional District Magistrate, it did not appear that the accused appeared before the Additional District Magistrate on any subsequent date, or on the 23 December 1926, when the Additional District Magistrate of Midnapore finally made up his mind to refer the matter to this Court; or that the accused had any knowledge of the fact of the Reference to this Court having been made by the said Additional District Magistrate.