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Calcutta High Court
Asrafali Saiyal vs Nasur Sarkar And Ors. on 21 December, 1926
Equivalent citations: AIR 1927 Cal 343, 101 Ind Cas 607


1. This is a reference under Section 438, Ciminal P.C., by the Sessions Judge of Faridpore recommending that the order of the Deputy Magistrate of Madaripur, discharging the accused under Section 119, Criminal P.C., in proceedings under Section 107, Criminal P.C., may be set aside. It appears that on the report of one Asrafali Saiyal, Chowkidar of Tarabunia, proceedings were started against the Opposite Party under Section 107 Criminal P.C., for obstructing a halot. The case was adjourned from time to time till the 10th July 1926 when the following order was recorded by the Magistrate:

The petitioner is absent and no P. Ws. are present. There is also no petition on behalf of the prosecution. Accused persons are therefore discharged under Section 119, Criminal P.C.

2. Against this order the Sessions Judge of Faridpore was moved and the learned Jude has made the present reference on the ground that Section 119 has no application to the facts of this case and that the order passed by the Magistrate was without jurisdiction and should therefore be set aside. In the explanation the trying Magistrate stated that ha acted according to the procedure laid down in summons cases as provided for by Section 117, Criminal P.C., and he discharged or acquitted the accused under Section 247, Criminal. P.C. We think that the view of law taken by the trying Magistrate is not correct, for, under Section 117(2) the mode of trial is mentioned as that to be followed in summons cases Section 247 is not applicable to a case like the present inasmuch as no summons was issued in the case and there is no accused in the case, as has been hold, in several decisions of this Court: see the case of Queen-Empress v. Imam Mondal [1900] 27 Cal. 662. What the Magistrate is required to do under Section 117(1) Criminal P.C., is to proceed to enquire into the truth of the information upon which action has been taken. In the present case we may suppose that the Magistrate proceeds to enquire into the truth of the information and no evidence having been produced before him he holds under Section 119, Criminal P.C., there it is not proved that the person in respect of whom enquiry is made should execute a bond. This is a procedure which the Magistrate is entitled to follow in the absence of any evidence on behalf of the complainant or the petitioner in the case.

3. According to the view taken by the Sessions Judge the accused has no remedy if the complainant does not choose to appear before the Court to substantiate his allegation nor has the Magistrate any power to discharge the accused under these circumstances. We are therefore of opinion that the order passed by the trying Magistrate discharging the accused was an order which could be properly passed under Section 119, Criminal P.C. Accordingly we reject the Reference.

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