(1.) THIS is an appeal by the State from the judgment of the Magistrate First Glass, Bikaner, dated the 18th of August 1958 acquitting the accused Radheshyam under Section 353 of the Indian Penal Code on the ground that the case was triable under the Prisons. Act of 1894 by the Superintendent of Prisons.
(2.) THE facts of the prosecution case were that the accused Radheshyam was an under-trial prisoner on the 15th of October 1957 when the occurrence took place. He was in detention in the District Jail, Bikaner. On the 15th of October 1957 he was taken to the court premises for attending the hearing of the case against him. He was led to the latrines for allowing him to attend to the call of nature and when he insisted to go in a particular latrine to contact some lady who was already inside it, Fakir Mohammad, constable on duty, did not permit him to go there. The prisoner then tried to assault Fakir Mohammad, but he was stopped from doing so by another constable on duty, namely Ganpatsingh. Fakir Mohammad brought this fact to the notice of the Sub-divisional Magistrate, who referred the case to the Police Station Sadar, Bikaner. The police after investigating the case challaned the accused Radheshyam under Section 353 I. P. C. to the court of the Sub-divisional Magistrate, Bikaner City, who after framing a charge transferred the case to the Magistrate First Class, Bikaner. The defence of the accused was that he was falsely prosecuted on account of the fact that he had lodged a complaint against Fakir Mohammad in the court of the Sub-divisional Magistrate, Bikaner. The learned Magistrate, First Class, Bikaner, after holding a trial recorded an order of acquittal in favour of the accused on the ground that he had no jurisdiction to try the case for the reason that the facts of the case constituted an offence under Section 45 (2) of the Indian Prisons Act, 1894 which was cognisable and punishable by the Superintendent of Prisons under Section 46 of the said Act and unless the Superintendent of Prisons forwarded such a case to the District Magistrate under Section 52 of the Prisons Act, the ordinary criminal courts could not try the case.
(3.) IN this appeal it has been contended on behalf of the State that the view adopted by the learned Magistrate in the court below is erroneous and the intention of the Prisons Act of 1894 cannot be construed to oust the ordinary jurisdiction, of the criminal courts. It was also urged that a case under Section 353 of the Indian Penal Code was alleged to have been committed by Radheshyam which was not a prison offence as defined by Sec, 45 (2) of the Prisons Act, which corresponds with an offence under Section 352 of the Indian Penal Code and not with an offence under Section 353 of the Indian Penal Code.