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Criminal Revision Application No. 233 of 1963, decided on 25th June 1963.

S. 323‑Offence under S. 323 committed and complaint lodged after coming into force of Conciliation Courts Ordinance (XLIV of 1961)‑Controlling Authority not exercising power under S. 17 (1), Conciliation Courts Ordinance, 1961‑Jurisdiction of criminal Court to try offence, held, completely ousted‑Conviction and sentence set aside -Conciliation Courts Ordinance (XLIV of 1961), Ss. 3 (1) (a) & 17 (1).

T. Talukdar for Petitioner.

S. R. Pal: Amicus Curiae.

This Rule was obtained by the petitioner against his order of conviction and sentence pronounced by a Magistrate of the 1st Class, and armed on appeal by the learned Sessions Judge, Dinajpur, on the ground that the Criminal Court in view of the Conciliation Courts Ordinance No. XLIV of 1961, had no juris diction to try the petitioner who was charged with the offence of assault under section 323 of the Penal Code.

2. The petitioner is alleged to have assaulted his boss (Md. Nefaur Rahman), the Chief Circle Officer of Baliadangi Police Station. The petitioner was charged by the said Chief Circle Officer to have absented himself from duty without leave or permission and was asked to submit an explanation for the same. The petitioner went to see the complainant in the Lahari Dak Bungalow and there, instead of submitting his explanation, assaulted the said Officer on 19‑6‑62. On 20‑6‑62 a complaint was lodged with the Sub‑Divisional Officer who took cognizance of the case and charged the petitioner under section 323 of the Pakistan Penal Code. The trial was held by a Magistrate of the 1st Class, Thakurgaon, who found the petitioner guilty of the offence under section 323 of the Penal Code and convicted him under the said section and sentenced him to suffer rigorous imprisonment for six months.

3. An appeal was taken to the learned Sessions Judge, Dinajpur on various grounds but, as is found from the judgment of the learned Judge, the appeal was pressed only on the ground of sentence. The learned Sessions Judge, in the facts of the case, did not consider the sentence of six months' rigorous imprison ment to be excessive and, therefore, dismissed the appeal.

4. The present Rule was obtained by the petitioner on the ground that the criminal Court had no jurisdiction to try the petitioner in view of the provisions of section 3 (t) (a) of the Conciliation Courts Ordinance No. XLIV of 1961.

5. Mr. T. Talukdar, the learned Advocate for the petitioner, submitted that, in terms of the provisions of Ordinance XLIV of 1961, the criminal Court's jurisdiction to try an offence under section 323 of the Penal Code has been completely ousted. The petitioner in this case having been charged with an offence under section 323 of the Penal Code, which falls under Part I of the Schedule to the said Ordinance, is triable only by a Conciliation Court and not by a criminal Court. Accordingly, therefore, Mr. Talukdar challenged the order of conviction and prayed for quashing of the entire proceeding in the present case.

6. I am told that several applications are pending in this Court on similar grounds ; and this being the first case which came up for decision, I requested Mr. S. R. Pal, Advocate to appear as amicus curiae and assist the Court in the matter. There was no appearance by the State in this case.

7. Mr. Pal has submitted that, in view of the provisions of section 3 (1) (a) of Ordinance No. XLIV of 1961, an offence under section 323 of the Pakistan Penal Code which has been mentioned in section A of Part I of the Schedule to the Ordinance, is triable exclusive by a Conciliation Court and that the ouster of the jurisdiction of criminal Court in this respect is complete except in a case where under section 17(1) of the Ordinance the Controlling Authority, being of the opinion that the circumstances of the case are such that the public interest and the ends of justice demand its trial in a criminal Court, transfers the case from the Conciliation Court to a criminal Court.

8. The Ordinance No. XLIV of 1961 came into force in this Province on the 1st of March 1962, the offence was committed by the petitioner on 19.6‑62, and the complaint, therefore, was lodged with the Sub‑Divisional Officer on 20‑6‑62. There is nothing on record to show that the Controlling Authority had exercised his jurisdiction under section 17 (1) of the Ordinance for the purpose, as stated earlier. In that view of the matter, it becomes now clear, in terms of the provisions of the Ordinance that where there is an offence of assault only under section 323 of the Penal Code, the jurisdiction of the criminal Court to try the same has been ousted completely.

9. In the present case there was no other charge levelled against the petitioner except the one under section 323 of the Penal Code and the said offence having been committed after the coming into force of the Ordinance XLIV of 1961, I have no hesitation to hold that the criminal Court had no jurisdiction to try the petitioner in this case.

In the result, this rule is made absolute ; the order of conviction and sentence passed against the petitioner is set aside and he is acquitted of the charge framed against him.

The petitioner is discharged from his bail bond.

S. Q. Rule made absolute.

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