DASARATH RAI Vs. EMPEROR

JUDGEMENT

(1.) This is a Rule calling upon the District Magistrate to show cause why the conviction and sentence of the petitioners should not be set aside on three grounds: first, that the Joint Magistrate had no jurisdiction to try the appeal, inasmuch as he had taken cognizance of the complaint against the petitioners; secondly, that the offence for which the petitioners were tried was one within Section 447 of the Indian Penal Code, whereas they have been convicted under Secs.428 and 352, which is also contrary to the provisions of Section 246 of the Criminal Procedure Code; and, thirdly, that there is no finding as to the necessary intent under Section 447 of the Indian Penal Code. Cause has been shown by the learned Junior Government Pleader.

(2.) It appears that the complainant charged the petitioners with certain offences. On the 15th December 1908, Babu Durga Prosad, a Deputy Magistrate, who received the complaint and examined the complainant, recorded an order: "Story seems doubtful. To Sub-Deputy Magistrate, Babu Rameswar Prosad, for favour of local investigation and report by 21st December 1908." The Sub-Deputy Magistrate having examined witnesses submitted a report recommending the dismissal of the complaint. The matter came before Mr. Whitty, Joint Magistrate (then in charge of the criminal business of the sudder sub-division) who, without expressing any clear opinion hostile to the petitioners, thought that they ought to be summoned to stand their trial. In the opinion of Mr. Whitty, the Sub-Deputy Magistrate had not given satisfactory reasons for recommending the complaint to be dismissed. On the date fixed, the matter again came before Babu Durga Prosad, Deputy Magistrate, who took bail from the accused persons present in his Court. On the next date fixed, the 3 February 1909, Mr. Whitty (as sudder Sub-divisional Magistrate) transferred the case for disposal to Mr. A.M. Rashad who convicted the petitioners under Secs.426, 352, and 447 of the Indian Penal Code, although they had been summoned to answer a charge under Section 447 only.

(3.) In these circumstances, we are of opinion that the Joint Magistrate, Mr. Whitty, had jurisdiction to hear the appeal. It is true that he summoned the petitioners as accused persons, but that was because he was in charge of criminal business as we have already mentioned. The cognizance of the case had already been taken on complaint by the senior Deputy Magistrate, and Mr. Whitty did not take action under Section 190, Sub-section (1), Clause (c) of the Criminal Procedure Code, as has been argued that he must have done. if he had no power to transfer the case from the file of Babu Durga Prosad, the irregularity is covered by Section 529(sic) of the Criminal Procedure Code. The objection is very technical and has no substance. Moreover, the Joint Magistrate (Mr. Whitty), not having expressed any judicial opinion upon the facts stated in the report of the Sub-Deputy Magistrate, was not incompetent to hear an appeal from the judgment ultimately convicting the petitioners. He was not debarred from so doing by the provisions of Section 556 of the Criminal Procedure Code. It may be mentioned in this connection that no objection was taken to Mr. Whitty's trying the appeal, either in the Court below or here, on the ground that he should not try the appeal because he had already formed or expressed an opinion on the merits of the case hostile to the petitioners.