The Judgment of the Court was as follows:—
In this case the learned Additional District Magistrate of Midnapore made a Reference to this Court on the 11th March 1927 recommending that a certain order passed by Babu Sukesh Chandra Deb Roy, Deputy Magistrate of Midnapore, convicting the accused under sec. 323, I.P.C and letting him off with a warning under sec. 562(14), Cr. P.C might be set aside and the accused convicted either under sec. 323 or sec. 324, I.P.C, and given a suitable sentence. The order of the Magistrate is dated the 28th July 1926.
This Reference came on before us for hearing on the 5th May 1927. The case appealed on the daily printed defended list and the record in this Court was marked with the word “defended.” Mr. Narendra Kumar Basu, Advocate, appeared for the complainant, but at the time of the hearing of the Reference there was no appearance by any learned Counsel, or Advocate or Vakil on behalf of the accused. Having regard to the fact that the record of the Reference before us showed on the face of it that it was “defended we assumed” that notice of the Reference had been served on the accused, and after hearing Mr. Basu for the complainant we accepted the Reference and altered the conviction from one under sec. 323, I.P.C, to one under sec. 324, I.P.C, and sentenced the accused to suffer rigorous imprisonment for a period of one year. This order as stated above was made by us on the 5th May 1927. Subsequently, i.e, on the 23rd May 1927, Mr. S.C Bose, Advocate, appeared before us on behalf of the accused and drew our attention to the fact that our order of the 5th May 1927 had been made without hearing the accused and without the accused having been given any notice of the hearing of the Reference before this Court. We thereupon made enquiries and we discovered on examination of the record that although the accused appeared before the Additional District Magistrate on the 21st September 1926 when orders were reserved by the Additional District Magistrate, it did not appear that the accused appeared before the Additional District Magistrate on any subsequent date, or on the 23rd December 1926 when the Additional District Magistrate of Midnapore finally made up his mind to refer the matter to this Court; or that the accused had any knowledge of the fact of the Reference to this Court having been made by the said Additional District Magistrate. So far as the proceedings in this Court are concerned it did not appear, as it should have appeared, on the record in this Court, that no notice of this reference had been served upon the accused. As stated above our attention was never called to that fact. Under these circumstances we came to the conclusion that it was our obvious duty to issue a Rule at once on the application of the accused calling upon the complainant to show cause why the Reference should not be re-heard in the presence of both parties, i.e, the complainant and the accused. A Rule was accordingly issued. It was heard in part yesterday and the hearing has been concluded to-day.
The first point taken by Mr. Narendra Kumar Basu on behalf of the complainant is that having regard to our order of the 5th May 1927 we have no jurisdiction whatsoever to re-hear the matter. He has called our attention to various cases beginning with The Queen v. Godai Raout.*(1) (1) and ending with the case of Pigot v. Ali Mohammad Mondal (2). We have examined the cases, and except the case of King-Emperor v. Ramesh Chandra Gupta (3) and the case of Achambit Mondal v. Mohatab Singh (4), we do not think that the other cases have any real bearing having regard to the facts of this particular case. But be that as it may, we are concerned really, on the question of jurisdiction, with the provisions such as they are contained in the Code of Criminal Procedure as at present amended. We think under the present Code we have ample powers in a case of this description and having regard to the facts involved to vacate our order of the 5th May 1927 and to re-hear the reference. It will serve no useful purpose to go through the long catena of cases cited by Mr. Narendra Kumar Basu as in none of the cases referred to by him were the facts similar to the facts in the present case. Under sec. 439, Cr. P.C, we could not make an order of the description which we made on the 5th May 1927 without giving the accused an opportunity of being heard before us. In the circumstances, it may well be contended that the order that was made on the 5th May 1927 was an order per in curium and one which bordered on nullity. If our attention had been called to the fact that no notice had been given to the accused we would have directed in the ordinary course of things the issue of a Rule on the accused. That we did not do so is because of the circumstances to which reference has already been made. There can therefore be no bar in our opinion in vacating the order of the 5th May 1927 and re-hearing the reference in the presence of both sides. We have accordingly re-heard the reference and we have had the satisfaction of hearing an elaborate and exhaustive argument on the merits on behalf of the accused from Mr. S.C Bose. We are greatly indebted to him. But in the circumstances of this case there can be no doubt whatsoever that the action taken by the trying Magistrate under sec. 562(1A), Cr. P.C, was clearly irregular. In our opinion, this is a fit and proper case where this Court should exercise its powers of superintendence. We do not propose having regard to the facts stated in the judgment of the trying Magistrate and to the facts referred to in the Letter of Reference to go into details. It is sufficient to observe that this case could not by any stretch of the language of sec. 562(1A) be brought within the four corners thereof.
In this view of the matter we vacate our order of the 5th May 1927 and after rehearing the reference in the presence of both parties we accept the reference; we set aside the order made by the trying Magistrate under sec. 562(1A), Cr. P.C, and maintain the conviction under sec. 323, I.P.C, and sentence the accused to suffer rigorous imprisonment for the period of one year.
The accused who is on bail will surrender to his bail and undergo the sentence passed on him.
P.C