NAGESWAR SINGH Vs. STATE OF ASSAM
LAWS(GAU)-1973-5-2
HIGH COURT OF GAUHATI
Decided on May 18,1973

Nageswar Singh Appellant
VERSUS
STATE OF ASSAM Respondents

JUDGEMENT

BAHARUL ISLAM,J. - (1.) THIS application under Section 439 of the Code of Criminal Procedure is directed against the order dated 31 -12 -71 passed by the Sessions Judge, Dibrugarh and Lakhimpur, in Criminal Motion No. 21 (2) of 1971 directing further inquiry into the matter.
(2.) ON an information lodged by the Honorary Secretary of Hindusthani Vidyalaya, Tinsukia, the police registered a case against the petitioner, who was the Headmaster of the aforesaid Vidyalaya under Section 408 of the Penal Code. Police took up investigation and after completion of investigation submitted charge -sheet against the petitioner under Section 408 of the Penal Code. The accused was produced before the Magistrate, who, on perusal of the materials before him, by his order dated 7 -4 -71, discharged the petitioner under Section 251 -A (2) of the Code of Criminal Procedure. The Sessions Judge then was moved under Section 436 of the Code of Criminal Procedure and the learned Judge by his impugned order held that the order of discharge was not proper. He set aside the order and sent back the case to the Magistrate for further enquiry. The petitioner has filed the present application against this order. Shri S. K. Sen, learned Counsel appearing for the petitioner, submits that the impugned order of the learned Sessions Judge is without jurisdiction inasmuch as the order was made 'during trial' and therefore the order of the learned Sessions Judge amounted to an order for re -trial, and in support of his contention he relies on a decision of this Court in the case of Tabarak Ali v. Mantaj Ali (1961) 2 Cri LJ 460 (Assam).
(3.) THE relevant portion of Section 436 of the Code of Criminal Procedure may be quoted: 436. Power to order inquiry. - On examining any record under Section 435 or otherwise...the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrate subordinate to him to make...further inquiry...into the case of any person accused of an offence who has been discharged:. ... ... The relevant portion of Section 251 -A also may be quoted: (1) When, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished. (2) If, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.. Sub -section (2) of Section 251 -A gives the Magistrate, in appropriate cases, power to discharge the accused, and Section 436 gives power to the Sessions Judge in appropriate cases to direct a Magistrate either by himself or by any Magistrate subordinate to him to make further enquiry into the case of any person accused of an offence who has been discharged. It is therefore clear that when a person is discharged by a Magistrate under Sub -section (2) of Section 251 -A, the Sessions Judge, under Section 436, may order further inquiry into the case of the accused so discharged. 4. The submission made by Shri Sen is that an order of discharge . under Sub -section (2) of Section 251 -A is 'during a trial' and therefore further inquiry within the meaning of Section 436 will only mean 'further trial'. In my opinion the submission of learned Counsel has no substance. Trial begins only after the charge is framed. In other words a trial follows a charge. Shri Sen takes strong reliance on the word 'trial' in Sub -section (1) of Section 251 -A. He submits that the moment the accused appears or is produced before the Magistrate under Sub -section (1) of Section 251 -A the trial begins, and any order passed thereafter is an order passed 'during trial'. We are therefore called upon to interpret the expression 'at the commencement of the trial'. The dictionary meaning of the word 'commencement' is 'beginning'. So the expression 'at the commencement of the trial' means 'at the beginning of the trial', which, in the context of Section 251 -A, means 'at the beginning of the trial'. In my opinion the expression means at the point of starting of the trial, and the trial starts when the charge is framed. This interpretation is compatible with justice and prevention of possible miscarriage of justice. If the interpretation put by learned Counsel is accepted, there will be grave miscarriage of justice if, in spite of adequate materials for framing a charge or charges against an accused, the Magistrate wrongly discharges him under Section 251 -A (2). ;


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