BANKIM BEHARI SEN Vs. YUSUF MIAN

JUDGEMENT

(1.) Although this Court is reluctant to interfere with an order of acquittal yet on account of the serious illegalities committed by the trial Court, I am afraid, I shall have to set aside the order of acquittal passed by it under Section 247, Criminal P.C. To begin with, the charge framed against the accused was one under Section 427, I.P.C. This charge was never amended till for the first time we hear in the final order that the Magistrate thinks that the offence committed possibly came under Section 426, I.P.C., and after having come to that conclusion he acquits the accused under Section 247, Criminal P.C., because the complainant does not happen to be present on the date on which the Magistrate was to pronounce judgment.

(2.) It appears, as pointed out by Mr. Yasin Yunus, that he held a local inquiry and evidently it is upon the basis of that local enquiry that he has come to the conclusion that the offence made out was one under Section 426, I.P.C., but even with regard to this local enquiry I see no indication in the order sheet as to when the Magistrate made up his mind to go to the place and whether he informed the parties about the local inspection or not. The inspection note of course is dated 4th September 1938.

(3.) He has therefore utilized his observation in the course of the local enquiry for coming to a certain finding. As the local enquiry was held without any notice to the parties (so far as one can see from the order sheet) and as the charge, which was framed under Section 427, I.P.C., was, in order to utilize the provisions of Section 247, Criminal P.C., suddenly deemed to be a charge under Section 426, I.P.C., on the basis of the observations made in the local inquiry, I am afraid the cumulative effect of all these is that the last order which is an order of acquittal under Section 247, Criminal P.C., is vitiated and therefore it must be set aside.