Mohesh Chandra Saha v. Emperor — 1908 DIGILAW 42 (CAL)

JUDGMENT 1. This is a rule to show cause why the conviction and sentences in this case should not be set aside on the ground that after the case was transferred to the file of Babu Jogobundhu Ghosh, that officer did not hold a de novo trial. The Petitioners have been convicted under sec. 147, Cr. P. C. Kechu Pramanik has been sentenced to one month's rigorous imprisonment and Mohesh Chandra Saha to pay a fine of Rs. 100. 2. The case was originally on the file of Mr. G.E. Oddie who recorded the evidence of the witnesses for the prosecution They were cross-examined before him and a charge was drawn up by him. He was then transferred. The District Magistrate took the case on his own file, under sec. 528, Cr. P. C., and transferred it to the file of Babu Jogobundhu Ghosh, Deputy Magistrate. The accused did not claim a new trial: so Babu Jogobundhu Ghosh completed the trial and convicted the accused. They appealed to the Joint Magistrate, who on the 7th December ordered the Deputy Magistrate to examine two more witnesses. On the case coming before the Joint Magistrate for the second time, the appeal of the accused was dismissed. The day after the arguments' in the case had been heard, the Appellants' pleader cited the case of Deputy Legal Remembrancer v. Upendra Kumar Ghosh 12 C.W.N. 140 (1906), to the Joint Magistrate, and contended that the proceedings of Babu Jogobundbu Ghosh in not holding a de novo trial were illegal. Before us Mr. Norton has supported the rule. The Advocate-General for the Crown has shown cause against it. 3. The contention of the Advocate-General is that the provisions of sec, 350, Cr. P. C. apply both to cases of transfer of a case under sec. 528 Cr. P. C. and to cases which after being begun by one Magistrate have to be completed by another, owing to the former Magistrate having left the district, when only, it is argued by Mr. Norton, he can be said to be succeeded by another Magistrate. The Advocate-General, however, replies that when a case is transferred under sec. 528 Cr. P. C. and to cases which after being begun by one Magistrate have to be completed by another, owing to the former Magistrate having left the district, when only, it is argued by Mr. Norton, he can be said to be succeeded by another Magistrate. The Advocate-General, however, replies that when a case is transferred under sec. 528 from the file of a Magistrate to that of another, the former ceases to have jurisdiction in the case, and is succeeded in the exercise of jurisdiction in the case by the other, just as if the former had been removed from the district and been succeeded in his office by the other. 4. In this case, Mr. Oddie was transferred from the district. The District Magistrate however passed an order under sec, 528, Cr. P. C. transferring the case, no doubt because Mr. Oddie was an Assistant Magistrate, and Babu Jogobundhu Ghosh, Deputy Magistrate, could not be said, strictly speaking, to succeed him in the office of Assistant Magistrate. 5. We consider the contention of the Advocate-General must prevail. We do not think that the provisions of sec. 350, Cr. P. C. apply only to cases in which Magistrates succeeded each other in their office. Magistrates subordinate to the District Magistrate rarely do so. Deputy Magistrates never succeed each other in their offices. But the terms of the section appear to us to apply to all cases in which cases are transferred for whatever reason from the file of one Magistrate to that of another. This is admitted in the case of Deputy Legal Remembrancer v. Upendra Kumar Ghosh 12 C.W.N. 140 (1906), in which Mitra and Holmwood, JJ., say: "The section, it seems to us, is capable of the interpretation that it covers all cases of change of trying Magistrates, whether on account of the first trying Magistrate being transferred to another district or on account of a transfer of a case under Chap. XLIV of the Code." 6. Further on, they observe: "The words of sec. 350 of the present Code are slightly different from the words of similar sections of the Codes of 1872 and 1882. XLIV of the Code." 6. Further on, they observe: "The words of sec. 350 of the present Code are slightly different from the words of similar sections of the Codes of 1872 and 1882. The alteration might have been made with a view to include cases of transfer." They then conclude with this order:--"Having regard to the general principle of interpretation that provisos and sub-clauses should be governed by the operative portion of the section and to the fact that the general rule laid down in the earlier rulings have been recognised and approved of on more than one occasion since the amendment was made, we hold that Moulvi Abdus Samad acted irregularly in convicting the accused on evidence partly recorded by Mr. Adie." 7. But the reasons for this order appear to us to be inconsistent, for the operative portion of sec. 350 expressly permits the conviction of an accused on evidence recorded, or partly recorded, by one Magistrate, who is succeeded by another; while the earlier rulings referred to are no doubt in favour of the opposite view. 8. We observe further that the conclusion of the learned Judges who decided the case of Deputy Legal Remembrancer v. Upendra Kumar Ghosh 12 C.W.N. 140 (1906), is only that Moulvi Abdus Samad acted irregularly, and for this reason they set aside the conviction. We presume they were of opinion that the irregularity was one that had prejudiced the accused. 9. The earlier rulings referred to by Mitra and Holmwood, JJ., have been laid before us. They are Purmessur Singh v. Soroop Adhikaree 13 W.R. 40 (1870), Kopil Nath Sahi v. Koneeram 14 W.R. 3 (1870), Raghoo Parirah 19 W.R. 28 (1873) and Queen v. Harnath Guho 24 W.R. 52 (1875). But the first two of these rulings appear to us to be in favour of the view advocated by the learned Advocate-General. The case of Raghu Parirah (4) is not in point. The only case in favour of the view contended for by Mr. Norton is that reported in Queen v. Harnath Guho 14 W.R. 3 (1870), alluded to in the judgment in the case of Deputy Legal Remembrancer v. Upendra Kumar Ghosh 12 C.W.N. 140 (1906). 10. The case of Raghu Parirah (4) is not in point. The only case in favour of the view contended for by Mr. Norton is that reported in Queen v. Harnath Guho 14 W.R. 3 (1870), alluded to in the judgment in the case of Deputy Legal Remembrancer v. Upendra Kumar Ghosh 12 C.W.N. 140 (1906). 10. Then, as for the rulings in which the general rule laid down in this case has been recognieed and approved of, since the alteration in the wording of the corresponding section of the Code of 1872, the only case exactly in point which Mr. Norton cites is that of Queen-Empress v. Angnu All. W.N., 1889, p. 130 (1889), which is the decision of a single Judge of the Allahabad High Court, and accordingly is not binding on us. 11. He also calls attention to Queen-Empress v. Bashir Khan ILR 14 All. 346 (1892) and Damri Thakur v. Bhowani Sahoo I. L. R. 23 Cal. 194 (1895). In the former of these the accused expressly prayed for a de novo trial, and as the Magistrate did not accede to their request, the conviction of the accused was rightly set aside. The latter case is not in point and need not be considered. 12. We are therefore of opinion that we are free to follow the interpretation which in our opinion should be put on the terms of sec. 350, Cr. P. C. and which Mitra and Holmwood, JJ., admit, the section is capable of having put on it, viz., that it applies to all instances of transfer of a case, for whatever reason the transfer may be made. 13. We have been pressed, if we take this view, to refer the question for the decision of a Full Bench. But looking at the terms of the order in the case of Deputy Legal Remembrancer v. Upendra Kumar Ghosh 12 C.W.N. 140 (1906), viz., that Moulvi Abdus Samad acted irregularly in convicting the accused on evidence partly recorded by Mr. Adie, which lays down no general rule, and which must have proceeded on the principle that the irregularity had prejudiced the accused, which is not shown to have been the case in the present instance, we do not think we need or could do so. We accordingly discharge the rule. Adie, which lays down no general rule, and which must have proceeded on the principle that the irregularity had prejudiced the accused, which is not shown to have been the case in the present instance, we do not think we need or could do so. We accordingly discharge the rule. The Petitioner who has been sentenced to imprisonment must be relegated to jail to undergo the remainder of his term.