UDIT NARAYAN PATWARI Vs. EMPEROR

JUDGEMENT

(1.) The petitioners six in number were convicted by a Second Class Magistrate of Bhagalpur under Secs.427 and 143, I.P.C. Under the former section, petitioner 1, Udit, was sentenced to a fine of Rs. 100 and the remaining five petitioners to a fine of Rs. 50. No separate sentence was passed under Section 143, I.P.C. Out of the fine, if realized, Rs 50 was ordered to be paid to the complainant. The case had a chequered career, the alleged occurrence having taken place on 20th February 1936. It appears that two counter-cases were instituted, one by the complainant of this case against the present petitioners and the other against the complainant. The Sub-divisional Officer ordered the counter-case to proceed first and ordered an inquiry into this case. The counter-case against the complainant of this case was dismissed and then the inquiry of this case was taken up by the Sub-divisional Officer.

(2.) At first the complaint in the present case was referred to the police and on receipt of the police report the learned Sub-divisional Magistrate, after considering it and various aspects of the case, dismissed it on 3 November 1936. The learned Sessions Judge of Bhagalpur was moved by the complainant and he directed a further inquiry into the complaint. On receipt of this order the Sub- divisional Magistrate recorded the following order on 10 March 1937: Sessions Judge has ordered a further enquiry. Let complainant prove his case before Mr. Ozair who will fix a convenient date for his inquiry and report by 80 March 1937.

(3.) Mr. Ozair, a Magistrate of the First Class, misunderstanding his position in respect of the case ordered, on 31 March 1937, summons to be issued on the present petitioners under Section 427, I.P.C. and proceeded to try the case. He examined some witnesses and on 29 June 1937 dis. charged the accused under Section 253(2), Criminal P.C., and recommended to the Sub-divisional Officer for a proceeding under Section 145 of the Code. When the matter was put up before the Sub-divisional Magistrate, he on 2 July, 1937, holding that the discharge of the accused by Mr. Ozair was entirely without jurisdiction, ignored it and ordered summons to be issued against the present petitioners, and after their appearance made over the case to the learned Magistrate who has convicted them on 2nd September 1937. Their appeal has been dismissed by a learned Magistrate of the First Class exercising appellate powers.