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1904 DIGILAW 141 (CAL)

Birendra Lal Bhaduri v. King-Emperor

1904-06-24

body1904
JUDGMENT 1. The Appellant has been convicted under sec. 420 / 511, I. P. C., of an attempt to cheat the Jessore Loan Office and has been sentenced to two years' rigorous imprisonment. Sometime in the year 1902, one Surendra Nath Majumdar acting on behalf of his employer Drabomoyee Debi instituted a prosecution against the present Appellant with reference to an alleged forged endorsement on a deed of sale and a forged mortgage deed. The Magistrate committed the accused for trial on charges under secs. 467 and 471, I. P. C., relating to these documents. At the Sessions the charges were amended and several were added including one under sec. 417 / 511. There was a conviction on some of the charges only. The High Court on appeal set aside the conviction and ordered a retrial on the ground that there was a misjoinder of charges and that the Sessions Judge's charge to the jury was defective. The accused was then retried on the charges relating to the mortgage deed and was acquitted. Next he was put upon his trial on charges under secs. 471 and 417 / 511. Upon motion to the High Court, it was held that the previous acquittal covered the charge under sec. 471 and that the accused could be tried only under sec. 417/511. When the case came to trial the Sessions Judge amended the charge to one under sec. 420/ 511, and on that charge the accused was convicted by the jury and hence this appeal. Various grounds of appeal have been urged before us, We think it sufficient to notice only two of them The first is that the Sessions Judge could not lawfully alter the charge to one under sec. 420 / 511, and that that section is inapplicable. We think that the Sessions Judge had full power under the law to amend the charge and that this Court did not intend to fetter his discretion. We also think that the word 'property' in sec. 420 does include money The second contention is that the Sessions Judge had no jurisdiction to charge and try the accused for attempting to cheat the Jessore Loan Office as no officer of that Company had lodged a complaint of such an offence nor had the Magistrate committed the accused for trial on any such charge. 420 does include money The second contention is that the Sessions Judge had no jurisdiction to charge and try the accused for attempting to cheat the Jessore Loan Office as no officer of that Company had lodged a complaint of such an offence nor had the Magistrate committed the accused for trial on any such charge. We think this objection must prevail, notwithstanding the remand order of this Court, for the objection was never before raised and dealt with. The prosecution was instituted by a person who had no concern with the Jessore Loan Office and whose complaint related to antecedent events. He could not be heard upon a complaint with which the Loan Office was concerned but did not offer to prosecute and the Magistrate did not commit the accused with reference to an offence committed against the Loan Office. 2. The Sessions Court is not a Court of Original Jurisdiction and though vested with large powers for amending and adding to charges can only do so with reference to the immediate subject of the prosecution and committal, and not with regard to a matter, not covered by the indictment. We therefore set aside the conviction and sentence and direct that the sureties be discharged. We desire to add that even if the conviction had been sustainable the time which the Appellant has spent in jail from first to last would in our opinion have been sufficient for the ends of justice.