Patna High Court
Jago Singh And Ors. vs Emperor on 23 July, 1919
Equivalent citations: 53IND. CAS.820, AIR 1919 PATNA 311
JUDGMENT Coutts, J.
1. The petitioners in this case, Jago Singh and Hurnandan Singh, have been convicted under Section 325, Indian Penal Code. Jago Singh has been sentenced to two years' rigorous imprisonment.
2. It appears that north of the petitioner's house there is a plot of parti land which is claimed by both the complainant in the case and by the present petitioners. On this land and close to the wall of the petitioners' house the complainant dug the foundation for a cowshed. After the trench for the foundation had been dug and while the complainant was away, the two petitioners came and began to fill up the ditch, one with a kodali and the other with his hands. While they were doing this, the complainant came on the scene and struck the petitioner Jago with a lathi. Hurnandan went into his house aid fetched out a spear with which he attacked the complainant and some others who were with him, and then Jago went into the house and fetched out a sword with which he also attacked them. The result was that the complainant and his friends were severely wounded.
3. Three points are urged before us on behalf of the petitioners. First, that they have not exceeded the right of private defence; secondly, that the procedure adopted in the trial is wholly illegal, and thirdly, that the Trying Magistrate went and inspected the locality and, without making any report of his proceedings or what he saw, has imported the result of his inspection into his judgment, There does not appear to be any force in the first contention. It may be that the petitioners have a claim to the land upon which the complainant dog the trench, bat they had no right to go into their house and fetch oat deadly weapons and with them to attack the complainant.
4. On the second point, however, it appears to me that the petitioners must succeed. What happened is this. The case was first taken up by the Assistant' Magistrate Mr. Thadani and the whole of the prosecution witnesses were examined and cross-examined. At this stage Mr. Thadani was transferred and the Sub-Divisional Officer withdrew the case to his own file. In accordance with their right under Section 359 the accused demanded a de nezo trial. The trial was accordingly started again and was proceeded with by the Sub-Divisional Magistrate, who examined some of the prosecution witnesses. Mr. Thadani then again returned to Mongbyr and the Sab-Divisional Magistrate re-transferred the case to his file, with the direction, that he was to take it up from the point where he, Mr. Thadani, had left it. This Mr. Thadani did He finished the trial and the petitioners were convicted and sentenced as has already been stated.
5. The procedure adopted is wholly illegal. When the Sub-Divisional Magistrate took the case on his own file and started the trial de noio, the proceedings before the Assistant Magistrate were wiped out and Section 350 gave the Assistant Magistrate no jurisdiction to proceed on the evidence which he had already recorded when the case was re-transferred to him again. It is not a case covered by Section 350 at all. Consequently the question of material prejudice does not arise.
6. In this view of the case it is unnecessary to consider the last point which has been urged. I would only say that the Assistant Magistrate should have made a record of what he observed and what he did at the time of the local inspection.
7. The conviction and sentences must, therefore, be set aside and the case remanded for re-hearing.
Adami, J.
8. I agree.