Patna High Court
Hari Lal Choudhry And Ors. vs Emperor on 8 April, 1918
Equivalent citations: 53IND. CAS.931, AIR 1919 PATNA 361
JUDGMENT Ali Imam, J.
1. The facts of this case are shortly these. One Sheonandan Singh instituted a criminal case against eleven persons, including the petitioners. Out of these, eleven some were tried and convicted. After their conviction the private prosecutor happened to die and one Jugrup Singh, his uncle, applied to the Sub-Divisional Officer of Hajipur for summoning the petitioners to take their trial The Sub Divisional Officer rejected this petition, on the ground that the cape had been adequately dealt with by the first trial. Thereupon Jugrup Singh moved the District Magistrate of Mczafferpur, who ordered the petitioners to be proceeded against.
2. The learned Vakil appearing on behalf of the petitioners has taken two points on which be asks me to hold that the order of the District Magistrate of Muzafferpur is ultra vires.
3. The firs contention is that there should have been notice served upon his clients before an order under Section 437 of the Cody of Criminal Procedure Could have been passed. Reliance for this contention is placed upon Ambar Ali v. Anjab Ali 32 C. 783. 9 C. W. N 810; 2 Cr. L. J. 524. and Girdhari Marwari v. Emperor 12 C. W. N. 822; 8 C. L. J. 78; 8 Cr. L. J. 51. On the authority of these rulings it is contended that the order without notice is bad. The learned Assistant Government Advocate appearing on the other side has drawn my attention to Girish Chunder Ghose v. Emperor 29 C. 457; 6 C. W. N. 638. and Hari Dass Sanyall v. Saritula 15 C. 608 (F. B.) 13 Ind. Jur. 55; 7 Ind. Dec. (N. S.) 989. His contention is that notice in all cases under Section 437 of the Code of Criminal Procedure is not necessary. He argues that such notice is necessary only in those cases where the accused have already appeared and have been discharged. In cases where the accused have not appeared before the Magistrate and taken their trial, he contends, no such notice is necessary. I agree in the contention raised by the Assistant Government Advocate. The authorities he has cited clearly draw a distinction between the cases covered by Ambar Ali v. Anjab Ali 14 Ind. Cas. 768; 39 C. 238; 13 Cr. L. J. 804. and Girdhari Marwari v. Emperor 12 C. W. N. 822; 8 C. L. J. 78; 8 Cr. L. J. 51. above referred to, and the case before me. On the foots of this case it is quite evident the petitioners, as a matter of fact, never had appeared before any Magistrate and, therefore, the authorities relied upon by the Assistant Government Advocate apply to the present case.
4. The second point on the question of jurist diction raised on behalf of the petitioners is that the District Magistrate of Muzafferpore had no jurisdiction at all to direct a further enquiry into this case. There is no substance in this contention. The point, is concluded by the authority of Ajab Lal Khirher v. Emperor 32 C. 783. 9 C. W. N 810; 2 Cr. L. J. 524. The order of the Sub-Divisional Officer in this case refusing to try the petitioners amounts to a discharge and the jurisdiction of the District Magistrate under Section 437, Criminal Procedure Code, remains.
5. In the circumstances the application is rejected.