Judgment

S. K. DAS, J. : (on behalf of himself and A. K. SARKAR, J.) This is an unfortunate case in more than one sense. So far back as August 11, 1950, there was some incident in premises No. 18 Bondel Road in Calcutta in the course of which one Col. S. C. Mitra, a Gynaecologist and Surgeon, lost his life. Col. Mitra was the husband of petitioner No. 1 and father of petitioner No. 2. In connection with the Colonel s death, Sunil Chandra Roy, at present respondent No. 1, and his two brothers were placed on their trial for offences under Ss. 302, 323 and 447 of the Indian Penal Code. Very shortly put, the case against them was that they had trespassed into 18 Bondel Road, following upon a quarrel regarding the supply of water to premises No. 17 Bondel Road which belonged to petitioner No. 2 and consisted of several flats one of which on the second floor was in occupation of Sunil as a tenant; that they had attacked Col. Mitra and petitioner No. 2; that Sunil had inflicted a blow or blows on the Colonel which caused his death and that one of his brothers Satyen had inflicted some minor injuries on the person of petitioner No. 2. There was also a charge against Sunil for an assault alleged to have been committed on Mrs. Sati Mitra, wife of petitioner No. 2. The accused persons were, in the first instance, tried by the Additional Sessions Judge of Alipur with the result that Sunil was convicted under Ss. 325 and 447 and Satyen under Ss. 323 and 447, Indian Penal Code. So far as the third brother Amalesh was concerned, his case was referred to the High Court as the learned Judge did not agree with the jury s verdict of not guilty.

2. Sunil and Satyen appealed to the High Court against their convictions and sentences; the State of West Bengal obtained a Rule for enhancement of the sentences passed on Sunil and Satyen. The appeal, the Rules and Reference were heard together. The appeal was allowed, and the High Court of Calcutta directed that Sunil and Satyen be retried at the Criminal Sessions of the High Court. The Reference in respect of Amalesh was rejected and the Rule for enhancement of the sentences passed necessarily fell through.

3. Sunil and Satyen were then tried at the Criminal Sessions of the High Court by Mitter, J., with the aid of a special jury. The jury unanimously found Sunil guilty under sections 325 and 447, and Satyen under sections 323 and 447, Indian Penal Code. The learned Judge accepted the verdict and sentenced both Sunil and Satyen to various terms of imprisonment and fines.

4. An appeal was then preferred by Sunil and Satyen. This appeal was again allowed, and another re-trial was directed at the Criminal Sessions of the High Court.

5. The retrial was held by P. B. Mukherjee, J. Before the commencement of the trial, the State withdrew the case against Satyen on the ground of the state of his health. Therefore, Sunil alone was tried, and the charges against him at the third trial were two in number : one under S. 325 Indian Penal Code for voluntarily causing grievous hurt to Col. Mitra & the other under S. 447, Indian Penal Code for criminal trespass into premises No. 18 Bondel Road with intent to intimidate, insult or annoy Col. Mitra or his son Nirmal, petitioner No. 2 herein. This time the jury, by a majority verdict of 7 to 2 found Sunil not guilty of the charge under S. 325, Indian Penal Code and, by a majority of 6 to 3, found him not guilty of the other charge also. The learned Judge accepted the verdicts and acquitted Sunil.

6. Then, the State of West Bengal preferred an appeal to the High Court against the order of acquittal, but the High Court summarily dismissed it on June 14, 1954, on the ground that no case had been made out for the admission of the appeal under the provisions of S. 411A (2) of the Code of Criminal Procedure.

7. Then, on July 22, 1954, the petitioner herein made an application to the High Court for a certificate under Article 134 (1) (c) of the Constitution that the case is a fit one