Hemendra Nath Sen v. Emperor

Chotzner and Gregory, JJ.:— This Rule was granted on the ground that the learned Magistrate, Mr. S.N Dutt, not having any jurisdiction to like cognizance of the offence under section 190(c), Code of Criminal Procedure, the proceedings instituted against the petitioner are bad in law and should be quashed. There is no dispute about the facts, which are that one Jaduram was summoned by Mr. Bhowmic, Deputy Magistrate of Dinajpur, under section 420, Indian Penal Code, on the ground that he induced the complainant Kali Chavan Deshi, to pay him a matter of Rs. 550 on the false representation that money was to be paid to the present petitioner, Hemendra Nath Sen, a Sub-Inspector of Police, in order to sectire the release of one Bindha, who had been arrested in connection with an investigation in a case of murder. The case was subsequently transferred under the orders of this Court by the District Magistrate from the file of Mr. Bhowmic to the file of Mr. S.N Dutt, another Deputy Magistrate, for trial. The Magistrate after-recording the evidence found that the case against Jaduram had not been substantiated, but that there was a strong case against the present petitioner and he, therefore, directed summons to issue against him under section 161 read with section 511, sections 317 and 323 of the Indian Penal Code. Mr. Chatterji, who has appeared on behalf of the petitioner, contends that Mr. Dutt had no authority to issue processes and that the only person, who was competent to take such action, was Mr. Bhowmic before whom the original petition of complaint was filed. He further points out that the petitioner was examined as a witness in the case and he says, on the authority of the case of Khudiram Mookerjea v. Empress, that the action of the Magistrate was illegal. It is contended by Mr. Khundkar on behalf of the Crown that the original petition of complaint filed by Kali Charan Dashi was in itself sufficient to justify the issue of processes against the petitioner and that Mr. Dutt, to whom the trial had been transferred, stood exactly in the same position as Mr. Bhowmic, who had taken cognizance on the Original complaint.

In our opinion, this Rule should be discharged. The petition of Kali Charan Dashi makes it perfectly clear that the present petitioner was primâ facie instrumental for the demand of the bribe. If. Mr. Bhowmic, who took cognizance of the offence, as he did, under section 190(a), Code of Criminal Procedure, had chosen to issue process against the petitioner, no possible objection could have been taken. Mr. Dutt, to whom the case was transferred by the District Magistrate under the provisions of section 192, Code of Criminal Procedure, stood in the shoes of Mr. Bhowmic and lie had full authority to deal with the case as if he himself had taken cognizance of it. The facts cited in Khudiram's case to which we have referred do not seem to us to have any bearing on the present case.

For these reasons this Rule must be discharged.

G.S

Rule discharged.