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Petitioner: MAULVI ASIR-UD-DIN CHOW DHURY VS Respondent: THE CROWN
P L D 1953 Federal Court 125
P L D 1953 Federal Court 125
(Appellate Jurisdiction)
Before Abdul Rashid, C. J., A. S. M. Akram and A. R. Cornelius, JJ
Maulvi ASIR‑UD‑DIN CHOW DHURY‑Appellant
versus
THE CROWN‑Respondent
Criminal Appeal No. 21 of 1952, decided on 2nd December 1952.‑
(On appeal against the judgment and order of the High Court of Judicature at Dacca in East Bengal, dated the 26th April 1951, in Criminal Revision No. 2 of 1951).
(a) Criminal trial‑
Jurisdiction‑Charge under Ss. 218 and 420, P. P. C.‑Offence under S. 218, P. P. C. exclusively triable by Court of Session‑Both charges tried by Magistrate, but accused only convicted under S. 420, P. P. C.‑Prejudice to accused- Trial vitiated‑Conviction quashed.
An offence under section 218 of the P. P. C. is triable exclusively by a Court of Session. As soon as the Magistrate had framed a charge against the appellant of an offence under section 218 of the P. P. C. it was his duty to commit the case to the Sessions Court. Instead of doing so, he continued with the case, and after several hearings, convicted the accused under section 420 and sentenced him to 6 months' rigorous imprison ment and a fine of Rs. 200.
Held, that the Magistrate had no jurisdiction at all to hear the case after a charge under section 218 had been framed by him against the accused and that all the proceedings taken by him after that date were void and without jurisdiction. The appellant, after a charge had been framed under section 218 of the P. P. C. was entitled to be tried by a Sessions Judge. The offence took place of Rajshahi District, and in this district all sessions trials were held with the aid of a jury. The appellant has, therefore, been seriously prejudiced by being deprived of a jury trial in the Court of Session.
The fact that no objection as regards jurisdiction was raised by the accused person in the trial Court, before the Sessions Judge, or in the High Court, cannot in any way validate the proceedings in the Court of the Magistrate after the 7th of April 1949. 1 he failure of the accused to raise such an objection, or even his consent, cannot confer on the Magistrate the jurisdiction which he did not possess.
(b) Re‑trial‑
Offence in 1947‑Trial in 1949‑Accused in custody for long time‑Not a fit case for re‑trial.
The offence was committed in the year 1947 and the accused was placed on his trial in 1949. He was in custody for a long time during the course of his trial. In these circumstances, held, it was not a fit case for a trial.
M. Fazlul Huq, Advocate, Federal Court instructed by S. A. B. Mahmud Hussain, Attorney for Appellant.
Respondent : not represented.
Date of hearing : 21st November, 1952.
JUDGMENT
ABDUL RASHID, C. J.‑This is an appeal, by special leave, from a decision of a Division Bench of the High Court of Judicature at Dacca in East Bengal maintaining the conviction of the appellant under section 420 of the P. P. C. but reducing the sentence to the term of imporisonment already undergone and a fine of Rs. 200.
The appellant, Maulvi Asir‑ud‑Din Chowdhury, was Sub Inspector of Schools at Natore in March 1947. At that time Shashti Charan Sarkar (P. W. 2) was appointed as Third Pandit of a primary school by the Head Pandit. The Third Pandit joined the school on the 15th March 1947. A few days later he called on the appellant at Natore to obtain his letter of appointment. The appellant, however, told him to carry on the work, and assured him that a bill for his salary would be made in due course. He also asked Shashti Charan Sarkar for a sum of Rs. 20 as a dona tion for a school in his native village, but Shashti Charan told him that he was too poor to pay the amount. A short time afterwards the Head Pandit of the School submitted the quarterly return showing that Shashti Charan had worked in his school from the 15th of March 1947 till the end of May. The appellant, however, drew up a salary bill for Shashti Charan Sarkar from the 1st of March to the end of May 1947. This entire amount was sent to him by means of a money order. Later on, the appellant again demanded Rs. 20 from Shashti Charan as a consideration for his having obtained salary for him for the entire quarter beginning from the 1st of March and ending on the 31st of May 1947. Shashti Charan, however, expressed his inability to pay as he had already spent the amount, and submitted a petition to the Circle Inspector of Natore who reported the matter to the Sub -Divisional Magistrate. It is unnecessary to give further detailed facts relating to the various steps taken by the authorities for the prosecution of the appellant. Suffice it to say, that on the 7th of April 1949, the following charges were framed by Mr. L. R. Khan Magistrate, 1st Class, Rajshabi, against the appellant :‑
"First.‑That you, on or about the 12th day of July 1947, at Natore being the Sub‑Inspector of School charged with the preparation of pay bill of primary school teacher framed the pay bill of Shashti Charan Sarkar (Exh. 7) for the 1st quarter of 1947‑48 which you knew to be incorrect with intent to cause or knowing it to be likely that you will thereby cause loss or injury to the District School Board, Rajshabi, and thereby committed an offence punishable under section 218 of the I. P. C., and within my cognizance.
Secondly.‑That you, on or about the same day at same place cheated and thereby dishonestly induced the District School Board, Rajshabi, so deceived to pay Rs. 11‑1‑0 to Shashti Charan Sirkar, teacher, Sawail U. P. School, and thereby com mitted an offence‑punishable under section 420 of the I. P. C. ,and within my cognizance. And I hereby directed that you be tried by the said Court on the said charge."
"Charges read over to the accused who pleads not guilty."
The petitioner was convicted by the Magistrate of an offence under section 420 of the Penal Code only. His appeal was dismissed by the Sessions Judge, and his petition for revision was accepted by the High Court only to the extent of reducing the sentence of imprisonment awarded to him from one of 6 months' rigorous imprisonment to the term of imprisonment already undergone.
An offence under section 218 of the P. P. C. is triable exclusively, by a Court of Session. As soon as the Magistrate had framed a charge against the appellant of an offence under section 218 of the P. P. C. it was his duty to commit the case to the Sessions Court. Instead of doing so, he continued with the case, and after several hearings, convicted the accused under section 420 and sentenced him to 6 months' rigorous imprison ment and a fine of Rs. 200.
It is obvious that the Magistrate had no jurisdiction at all to hear the case after the 7th of April 1949, and that all the proceed ings taken by him after that date were void and without jurisdiction. The appellant, after a charge had been framed under section 218 of the P. P. C. was entitled to be tried by a Sessions B Judge. The offence took place in Rajshahi District, and we are informed by counsel that in this district all sessions trials are held with the aid of a jury. The appellant has, therefore, been seriously prejudiced by being deprived of a jury trial in the Court of Sessions.
The fact that no objection as regards jurisdiction was raised by the accused person in the trial Court, before the Sessions Judge, or in the High Court, cannot in any way validate the proceedings C in the Court of the Magistrate after the 7th of April 1949. The failure of the accused to raise such an objection, or even his consent, cannot confer on the Magistrate the jurisdiction which he did Dot possess.
For the reasons given above, I would accept this appeal and quash the conviction and sentence of the appellant. The fine, if already paid, shall be refunded.
The offence was committed in the year 1947 and the accused was placed on his trial in 1949 The learned Judges of the High Court have pointed out that he was in custody for a long time o during the course of his trial. In these circumstances, this is not a fit case for a retrial. I would, therefore, order that the appel lant shall not be retired.
A. S. M. AKRAM, J.‑I agree.
A. R. CORNELIUS, J.‑I also agree.
A. H. Appeal accepted.