Mir Mouze Ali vs Emperor on 18 February, 1920
4. The learned Vakil has argued that the direction of the learned Judge was wrong inasmuch as he referred to certain previous proceedings against these two accused and that such reference was inadmissible. The reference which the learned Judge made is as follows: After referring to the visit of Khorshed (the husband of the complainant) and his wife Baroo Bibi (the complainant), who appeared before Purna Chandra Mukerji, Mukhtear, and told him their story, whereupon the Mukhtear drafted a petition, Exhibit 2, and filed it in Court and the Sub-Divisional Magistrate examined the complain-ant Baroo Bibi on solemn affirmation on the same day, the learned Judge said: "The Sub-Divisional Magistrate, in accordance with departmental rules, made a local investigation into the case and on the 9th of November made a report to the District Magistrate recommending the prosecution of the head constable and the constable under sections 342, 384, 448, 354 and 323, Indian Penal Code. The District Magistrate ordered their prosecution as recommended and sent the case for trial to the Additional District Magistrate. The Additional District Magistrate tried the case, and on the 23rd of December 1918 he convicted both the accused and sentenced them to 6 months' imprisonment each under the above sections. Though the woman repeated to him her story of rape by the constable and two others, he held that the story of rape was an exaggeration and a fiction. In appeal the Additional Sessions Judge affirmed the conviction and sentence on the 24th February 1919. Thereafter the two accused men moved the Hon'ble High Court and the High Court on 10th June [See Mir Moze Ali v. Emperor 54 Ind. Cas. 58 : 30 C.L.J. 7 132 : 23 C.W.N. 1031 : 21 Cr. L.J. 10.--Ed.] reversed the conviction and ordered that the case be committed to the Court of Session for trial. Accordingly on 18th July the two accused men were committed to this Court for trial." My learned brother Mr. Justice Walmsley was a member of the Court which reversed the conviction and ordered a new trial, and as I understand the view which he and the other learned Judge took was that inasmuch as the story on behalf of the prosecution involved a charge of rape against one of the accused and abetment of rape against the other accused, the case ought to have been tried by a Court of Session, and ought not to have been tried by the Additional District Magistrate. Consequently they set aside the conviction and directed a new trial.