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CALCUTTA HIGH COURT
Sarat Chandra Shah Chowdhry - Appellant
Versus
The Emperor - Respondent
Rev. Nos. 959 and 1028 of 1902
Decided On : 26-11-1902
Retrial - Criminal Procedure - Sections 423(b), 232 - - The court discussed the power of an appellate court to order a retrial under Section 423(b) of the Criminal Procedure Code, holding that it is not limited to cases where the original trial was bad due to lack of jurisdiction. The court also considered Section 232 of the Criminal Procedure Code, which allows for a retrial when the accused has been misled in their defense due to a defect in the charges. The court held that the Sessions Judge was empowered to order a retrial under Section 232, as the charges had omitted to include the acts and omissions of the accused's agents, which had prejudiced their defense. The court further held that the Sessions Judge's order for a retrial was not illegal, as the Magistrate had not acquitted the accused on the charges preferred against them, and the Sessions Judge had not directed a second trial on charges not the subject of the previous trial. The court also considered the question of whether a retrial should be granted in the circumstances of the case, and held that it was a matter for the Crown to determine. The court directed that the trials should be held by a different Magistrate, as the original Magistrate had been involved in irregularities at the trial.
Fact of the Case:
Two riots occurred in different villages, allegedly involving adherents of two opposing landowning groups, the Bara taraf and the Chota taraf. Prosecutions were instituted against individuals from both groups, but all were acquitted. Subsequently, charges were laid against the shareholders representing both groups, along with a Naib, under sections 150, 154, 155, and 157 of the Indian Penal Code. The trial was transferred to a different court, where the Naib was acquitted, and the shareholders were convicted under sections 154 and 155 of the Indian Penal Code for both riots. The convictions were based on the acts and omissions of the accused's agents, even though the charges only referred to the accused's own knowledge, belief, and actions. The Sessions Judge set aside the convictions and ordered a retrial, citing irregularities in the original trial, including the joint trial of separate offenses, the refusal to allow the accused to recall witnesses, and the omission of the words "or their agents or managers" from the charges.
Finding of the Court:
The court found that the Sessions Judge was empowered to order a retrial under Section 232 of the Criminal Procedure Code, as the charges had omitted to include the acts and omissions of the accused's agents, which had prejudiced their defense. The court also found that the Sessions Judge's order for a retrial was not illegal, as the Magistrate had not acquitted the accused on the charges preferred against them, and the Sessions Judge had not directed a second trial on charges not the subject of the previous trial. The court further found that it was a matter for the Crown to determine whether a retrial should be granted in the circumstances of the case. The court directed that the trials should be held by a different Magistrate, as the original Magistrate had been involved in irregularities at the trial.
Issues: The issues raised in the case were: (1) whether the Appellate Court had the power to order a retrial under Section 423(b) of the Criminal Procedure Code, and (2) whether, considering all the circumstances, a retrial should have been ordered. The court also considered the question of whether the charges should be amended to include the acts and omissions of the accused's agents.
Ratio Decidendi: The court held that the Appellate Court had the power to order a retrial under Section 423(b) of the Criminal Procedure Code, even if the original trial was not bad due to lack of jurisdiction. The court also held that the Sessions Judge was empowered to order a retrial under Section 232 of the Criminal Procedure Code, as the charges had omitted to include the acts and omissions of the accused's agents, which had prejudiced their defense. The court further held that the Sessions Judge's order for a retrial was not illegal, as the Magistrate had not acquitted the accused on the charges preferred against them, and the Sessions Judge had not directed a second trial on charges not the subject of the previous trial. The court also held that it was a matter for the Crown to determine whether a retrial should be granted in the circumstances of the case.
Final Decision: The court discharged the rules, holding that the order for retrial was not illegal. The court also directed that the trials should be held by a different Magistrate.
JUDGMENT
1. These rules Nos. 959 and 1028 arise out of the same judgment of the Sessions Judge in a case in which the Petitioners were tried together, and they are practically identical in terms except in one particular. It will be convenient therefore to dispose of them together. The Petitioner in Rule 959 Sarat Chandra Shah Chowdhry holds an 8 anna share in the Parasdanga zemindary in the district of Pabna known as the Chota taraf while the Petitioners in Rule 1028 Gobinda Nath Shah Chowdhry and Prasannath Shah Chowdhry are the owners of the remaning 8 annas share, known as the Bara taraf.
2. It appears that on the 18th April 1901 a riot took place at a village named Bhanjara and on the following day another riot took place at another village named Katanga, and it is alleged that the adherents of the two tarafs were arrayed on opposite sides in these riots. There is no question that at that time the Bara taraf and Chota taraf were on very bad terms, and disputes were going on with regard to the collection of rent.
3. Prosecutions were instituted against a number of persons alleged to have taken part in the riots, but these resulted in the acquittal of all the persons charged.
4. After, and it has been suggested in consequence of the failure to obtain the conviction of any one in respect of the riots, charges were laid on the 1st November 1901 at the Thana under secs. 150, 154, 155 and 157 of the Indian Penal Code against the three shareholders representing the Bara and Chota tarafs jointly with one Tarak Nath Mozumdar, the Naib of the Chota taraf, A prosecution followed at Pabna, but it was transferred to Kustea and was there tried by the Sub-Divisional Magistrate.
5. There were two sets of charges under each section, one dealing with the riot at Katanga and the other with the riot at Bhangara. Eventually on the 30th July 1902 Tarak Nath Mozumdar was acquitted on all the charges on the ground that there was no evidence that he was present at either riot. The other accused persons were acquitted of the charges under secs. 150 and 157 of the Indian Penal Code but were convicted of the offences under secs. 154 and 155, Indian Penal Code, in respect of each riot and sentenced to pay fines aggregating in each case Rs. 2,000.
6. Although the sections under which the convictions were passed render the owner or occupier of land where an unlawful assembly is held or a riot takes place liable for certain acts or omissions in cases where "he or his agent or manager" knowing or having reason to believe that such unlawful assembly or riot is taking place or has taken place or is likely to take place. The charges framed by the Magistrate of Kustea and upon which the accused were tried, referred only to the knowledge or belief, and acts or omissions of the accused themselves and not of their agents or managers, the words "or their agents or managers" being omitted from the charges. It is important to refer to this matter because the Magistrate has found that the zemindars themselves were not present, and had no knowledge as to the riots, and that the acts or omissions within the terms of the sections were the acts or omissions of their agents or managers, holding that it was sufficient if it were shown that the agents or managers acted negligently, and it is clear that it was for the acts or omissions of the latter that the accused were convicted. On appeal the Sessions Judge held that the accused had been prejudiced in consequence of a number of irregularities at the trial, amongst which were the holding of a joint trial of the contending shareholders, the joint trial of separate offences committed in respect of two riots committed at different places on different days, the refusal of the Magistrate to allow the accused to recall or resummon and examine certain witnesses, and the treatment of the charges as if they had reference not only to the acts or omissions of the accused themselves but of their agents or managers. He was of opinion that b
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