The court has the jurisdiction and power to vacate a previous order and re-hear a reference in the presence of both parties under the present Criminal P.C.

JUDGMENT

1. In this case the learned Additional District Magistrate of Midnapore made a reference to this Court, on the 11th March 1927, recommending that a certain order passed by Babu Sukesh Chandra Deb Roy, Deputy Magistrate of Midnapore, convicting the accused u/s 323, I.P.C., and letting him off with a warning u/s 562(1A), Criminal P.C., might be set aside and the accused convicted either under Sections 323 or Section 324, I.P.C., and given a suitable sentence. The order of the Magistrate is dated the 28th July 1926.

2. This Reference came on before us for hearing on the 5th May 1927. The case appeared on the daily printed defended list and the record in this Court was marked with the word "defended." Mr. Narendra Kumar Basu, Advocate, appeared for the complainant, but, at the time of the hearing of the Eeference, there was no appearance by any learned counsel, or advocate or vakil on behalf of the accused. Having regard to the fact that the record of the Reference before us showed, on the face of it, that it was "defended," we assumed that notice of the reference had been served on the accused, and after hearing Mr. Basu for the complainant we accepted the Reference and altered the conviction from one u/s 323, I.P.C., to one u/s 324, I.P.C., and sentenced the accused to suffer rigorous imprisonment for a period of one year. This order, as stated above, was made by us on the 5th May 1927. Subsequently, i.e., on the 23rd May 1927, Mr. S.C. Bose, Advocate, appeared before us on behalf of the accused and drew our attention to the fact; that our order of the 5th May 1927 had been made without hearing the accused and without the accused having been given any notice of the hearing At the Reference before this Court.

3. We thereupon made enquiries, and we discovered, on examination of the record, that, although the accused appeared before the Additional District Magistrate on the 21st September 1926, when orders were reserved by the Additional District Magistrate, it did not appear that the accused appeared before the Additional District Magistrate on any subsequent date, or on the 23rd December 1926, when the Additional District Magistrate of Midnapore finally made up his mind to refer the matter to this Court; or that the accused had any knowledge of the fact of the Reference to this Court having been made by the said Additional District Magistrate.

4. So far as the proceedings in this Court are concerned it did not appear, as it should have appeared, on the record in this Court, that no notice of this Reference had been served upon the accused. As stated above our attention was never called to that fact. Under these circumstances we came to the conclusion that it was our obvious duty to issue a Rule at once on the application of the accused calling upon the complainant to show cause why the reference should not be re-heard in the presence of both parties, i.e., the complainant and the accused. A rule was accordingly issued. It was heard in part yesterday, and the hearing has been concluded today.

5. The first point taken by Mr. Narendra Kumar Basu on behalf of the complainant is that having regard to our order of the 5th May 1927 we have no jurisdiction whatsoever to re-hear the matter. He has called our attention to various cases beginning with Queen v. Godai Raout [1866] 5 W.R. Cr. 61 and ending with the case of Pigot v. Ali Mohammad Mondal AIR 1921 Cal. 30. We have examined the cases, and, except the case of King-Emperor v. Ramesh Chandra Gupta [1917] 22 C.W.N. 168 and the case of Achambit Mondal v. Mohatab Singh [1914] 42 Cal. 365, we do not think that the other cases have any real bearing having regard to the facts of this particular case. But be that as it may, we are concerned really, on the question of jurisdiction, with the provisions such as are contained in the Criminal P.C., as at present amended. We think under the present Code we have ample powers in a case of this description and having regard to the facts involved