Krishnadhon Ghose and Another vs Mahendra Nath Dutt

In this case against the petitioners before us a complaint was made disclosing offences punishable u/s 409 and Section 477A of the Indian Penal Code. The case was by some mistake made over for trial to an Honorary Magistrate exercising the powers of a Magistrate of the Second Class. He proceeded to deal with the case as one u/s 408, Indian Penal Code, and finally acquitted the accused. After certain intermediate proceedings to which we need make no further reference, the complainant presented a further complaint to the District Magistrate praying for the trial of the accused under Sections 409 and 477A, Indian Penal Code. The Magistrate thereupon took cognizance of this complaint and has referred the same to a Magistrate of the First Class for disposal.

It appears that the Magistrate of the Second Class who has dealt with the case is not empowered to commit accused person for trial to the Court of Session. If he had been so empowered, we might possibly have considered his order of acquittal u/s 408, Indian Penal Code, as tantamount to an order of discharge under Sections 409 and 477A. That not being so, having regard to the provisions of Section 530 (k) and Section 403 (4), Criminal Procedure Code, and the decision of this Court in Abdul Ghani v. Emperor 29 C. 412, we are unable to say that in taking cognizance of this second complaint the learned District Judge has erred. It is contrary to the practice of this Court to interfere with a prosecution at the initial stage, and in the present Case notwithstanding the Honorary Magistrate''s discussion of the evidence adduced before him, we are not prepared to do so in this case.

We, therefore, discharge this Rule.