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Bombay High Court
Emperor vs Rawji Hari Yelgaumkar on 16 January, 1907
Equivalent citations: (1907) 9 BOMLR 225
Author: Batty
Bench: Batty, Pratt


Batty, J.

1. The question whether the District Magistrate’s order directing the commitment of this case to the Sessions should be set aside depends mainly upon the construction that is to be placed on the words of Section 210, Criminal Procedure Code. That section requires that a charge should be framed and commitment made only when the Magistrate is satisfied that there are sufficient grounds for committing. It is urged that this phrase is tantamount to the language used in Queen Empress v. Namdev Satvaji (1887) I.L.R. 11 Bom. 372 and Empress v. Varjivandas (1902) I.L.R. 27 Bom. 84 ; 4 Bom. L.R. 779, which, according to the contention for the Crown, implies that there are sufficient grounds when the facts alleged by witnesses would suffice for the conviction if those witnesses were believed. The language in both those judgments, however, requires that the witnesses should be credible. We think, with reference to the wording of the present Code, a Magistrate can hardly be said to be satisfied that sufficient grounds for committing are supplied by the evidence of witnesses, if he himself is unable to believe those witnesses. Before he can be so satisfied it is manifest that all grounds for Emperor discrediting them must be removed. We think that a District v. Magistrate is not justified in calling on a Subordinate Magistrate to commit a case unless it can be shown that if that Magistrate was not satisfied as required by Section 210, Criminal Procedure Code, that he ought to have been satisfied; that is to say, it Ought to appear that the Magistrate had no ground for discrediting the evidence adduced for the Crown, as well as that the evidence relates to facts sufficient to form the basis for a conviction.

2. Now in the present instance, the District Magistrate has not at all considered and has deliberately declined to consider the grounds on which the Magistrate was unable to feel convinced by the evidence adduced. The District Magistrate has set forth certain grounds for believing that a prima facia case had been established. The first two grounds set forth by him consist in the circumstance that some alienation, some estrangement, existed between Krishnarav (the deceased) and Ravji and Krishnarav’s wife Radhabai. Any inference that might have been drawn adverse to the genuineness of the will from that circumstance has disappeared, because those conditions which were supposed to make such a will improbable, had incontestably passed away before the date assigned to the will. There was a temporary estrangement which appears to have been due in some measure to the conduct of the deceased himself. He was reconciled with his wife and received her back in his house within a short period before his death and retained Ravji in his confidence so that witnesses for the prosecution state that Ravji’s assent was necessary for all important works and that he continued to manage the affairs of the deceased up to the death of the deceased.

3. The further considerations enumerated by the District Magis trate appear to us to point at most to mere grounds of suspicion that might attach to the will, without raising any sufficient ground which could in any way justify a conviction. The First Class Magistrate has looked upon the evidence which suggests these suspicions with a distrust that we cannot feel was without justification. The tendency 01 the prosecution appears to have been to exaggerate very grossly the enfeebled condition of the deceased. The first witness stated him to be unconscious for tour or six weeks before his death, whereas subsequent witnesses say that it was only for 10 or 15 days. Another witness says that he could talk, but not much, during the last 15 days prior to his death. Another says he was unconscious for 17 or 18 days, another 15 days and so on, until the last witness says only that deceased was unable to talk for the last 2 or 3 days. This shows a tendency on the part of the prosecution witnesses to exaggerate and this would justify the Magistrate in regarding with great suspicion the bona fides of the witnesses called for the prosecution. To that ground for suspicion must be added the incredible statement of two witnesses for the Crown who say they were solicited to append forged attestations to the will a month after the death of the testator, when the existence of the will had already been asserted. On the other hand there is the evidence of the Talati whoso character is unimpeached, which would show that he was asked to look at the will by deceased himself, who appeared to regret that the witness had not been in time to attest its execution. We think on the whole case, that the Magistrate had very good grounds for considering that credence could not be attached to a case bearing such traces of animus. We think therefore the Magistrate was justified in declining to be satisfied that there were sufficient grounds for committing the case. The requirement that the grounds for committing the case should be sufficient must, we think, be taken as excluding all cases in which the alleged grounds for commitment appear insufficient, whatever the reason of this insufficiency may be and is not limited to a requirement for merely formal allegations whether credible or not as to the essentials of an alleged offence.

4. We set aside the order of the District Magistrate without in any way precluding him from taking further action as ho may deem necessary, should it appear to him that further evidence is available.

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