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Bombay High Court
In Re: Mudkaya Andanaya Hiremath vs Unknown on 22 September, 1926
Equivalent citations: AIR 1927 Bom 35
Author: Shah


JUDGMENT

Shah, J.

1. The circumstances under which these two applications in revision have been made to this Court are these. In a certain murder case the learned Sessions Judge of Dharwar, who tried the case, acquitted all the accused and, under Section 476, Criminal P.C. made a complaint against the present applicants and others charging them with offences punishable under Section 194, Indian Penal Code. An offence under Section 194, Indian Penal Code, is execlusively triable by a Court of Session. The First Class Magistrate, who dealt with the complaint, recorded the evidence and ultimately discharged both the present petitioners by sepa rateorders on October 19,1925, under Section 209, Crminal P.C. Narsapaya Sankapaya Deshpande, one of the persons acquitted in the original murder case, made applications to the Sessions Judge of Dharwar under Section 485, Criminal P.C. to revise these orders. The learned Sessions Judge, Mr. Ferrers, who had filed a complaint against the present petitioners, heard these applications and made an order under Section 437, Criminal P.C. directing the Magistrate to commit the petitioners to be tried by the Sessions Court. Apparently no objection was taken to the learned Sessions Judge dealing with those two applications in revision.

2. The two applicants, against whom the Sessions Judge made these orders, have applied to this Court in revision. The first point that is urged in support of these applications is that the learned Sessions Judge, who had initiated proceedings against the petitioners, wag not legally competent to make an order directing the committal of these two persons to the Sessions Court. In support of this contention reliance is placed upon the provisions of Sections 556 and 487, Criminal P.C. and it is urged that, in view of the fact that the Sessions Judge, who had tried the original case on the charge of murder out of which these proceedings arose, had lodged the complaint under Section 476, Criminal P.C. against the present petitioners, he was not competent to make such an order. Secondly, it is urged that the order of discharge made by the Magistrate in this case has been made after a consideration of the evidence, that it was competent to him to make the-order, and that it should not have been set aside by the learned Sessions Judge-in revision.

3. Having regard to the nature of the order made by the Sessions Judge, as also to the circumstances of the case, we thought it proper that we should hear the Government Pleader in the case who did not appear in the first instance. I may mention that Narsapaya Sankapaya Deshpande has been represented before us, and Mr. Desai has opposed the present applications on his behalf. We are ‘informed by the Government Pleader that he has instructions from the District Magistrate to say that he does not desire to proceed with the prosecution of these two petitioners. We have, however, heard Mr. Desai in support of the order-made by the learned Sessions Judge.

4. As regards the first point, it seems to me that as the learned Sessions Judge filed a complaint under Section 476, Criminal Procedure Code, against the present petitioners, he was a party to the proceedings before the Magistrate for the purposes of Section 556. That Section provides that:

No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.

5. Having regard to the admitted facts with reference to the present proceedings, it seems to me that the learned Sessions Judge who filed the complaint under Section 476, Criminal P.C. was disqualified from hearing the applications made to that Court under Sections 435 and 437 and from making an order directing the petitioners to be committed to the Sessions Court. In the view which I take of the position of the Sessions Judge with reference to these proceedings and the scope of Section 556, Criminal P.C., it is not necessary to consider whether, in view of the provisions of Section 487,Orimina P.C. he was legally competent to Seal with the applications made to that Court. The substance of the matter, to my mind, is that as the learned Sessions Judge himself directed the prosecution of these persons, and was formally the complainant, the applications to the Sessions Court should have been heard by another Judge having the same powers, but not by him, so that if in order directing the committal of these persons was to be made, he could do so without anylegal difficulty. 6. Our attention has been drawn by Mr. Desai to certain decisions, of which the case of Emperor v. Gulam Ahmed Ali Saheb [1913] 15 Bom. I.R. 104 is a type. It was a case of sanction granted under Section 195, Criminal P.C. as it stood then. Further, it was not a case in which the Sessions Judge had granted the sanction ; but the District Judge had granted it. I do not think that the decision in that case or its ratio decidend could apply to the facts of the present case. In this case the learned Sessions Judge, who heard the applications, was the complainant, and Mr. Desai has not been able to find any decision in support of his contention that, even where he is the complainant he could deal with the matter against the accused judicially in contravention of the provisions of Section 556, Criminal P.C.

6. On this ground the orders made by the learned Sessions Judge are liable to be set aside. The question then arises as to what order we should make now Broadly speaking, the position is that in the course of the Sessions trial these two petitioners gave evidence which the learned trial Judge thought was false, and that they were liable to be charged under Section 194, Indian Penal Code. Accordingly, be lodged a complaint, and the Committing Magistrate, who held an enquiry under Chapter XVIII of the Code of Criminal Procedure, came to the conclusion that the petitioners should be discharged. Whether the learned Magistrate transgressed the proper limits of an inquiry open to a Committing Magistrate under the Criminal P.C. or acted within those limits, is a matter upon which I do not consider it necessary to express any opinion. But it cannot be said in this case that he came to the conclusion in favour of the present petitioners without a fair and full consideration of the evidence before him. I also take into consideration the fact that, in the very beginning of his order, he directed himself as to what he had to consider in para. 2 of his order in a manner which cannot be said to be open to any objection. We know definitely now that the Crown does not desire to prosecute the present petitioners. Under these circumstances, it seems to me that it would be fair to let the order of discharge made by the Magistrate remain undisturbed.

7. I wish to make it clear that it is under the particular circumstances of this case that I have come to the conclusion that the order of discharge may be allowed to stand. If it had been necessary to consider the case in its details, it is not unlikely that we might have directed the applications made to the Sessions Court of Dharwar to be transferred to another Sessions Court in order that that Court may hear the parties, including the Crown. But we know definitely that the Crown does not desire to prosecute the petitioners. It seems to me that, under the circumstances of this particular case, no further proceedings are necessary.

8. On these grounds, I have to come to the conclusion that the orders made by the learned Sessions Judge should be set aside. I would order accordingly.

Fawcett, J.

9. In this case the main consideration is that the Sessions Judge who directed proceedings under Section 476, Criminal P.C. against the two petitioners is the same Judge who heard the applications under Section 437, Criminal P.C. He was the actual complainant in view of the terms of Section 476, as it stood in 1924, when proceedings were initiated. It seems to me difficult to resist the conclusion that, in view of the change made in Section 476, Criminal P.C. the Judge or Magistrate who proceeds under the provisions of that section is a party to the case in which he is a complainant, within the meaning of Section 556, Criminal P.C. This inevitably affects decisions that the mere fact that a Judge or Magistrate took action under the former provisions of the Code did not make him fall within the provisions of Section 556, Criminal P.C. At the same time I think that the terms *of “that section should be limited to the eases with which it purports to deal, namely, such Judge or Magistrate trying or committing for trial or hearing an appeal in any ease to which he is a party or in which he is personally interested. I, therefore, would not go so far as to say that, if the Sessions Judge had, for instance, merely directed further inquiry by some other Magistrate under Section 436, Criminal P.C, his action would fall under ‘the ban of Section 556, Criminal P.C, for I do not think it could properly be said that ho was ” trying the case ” within the meaning of that expression in the section.

10. In regard to this, I may refer to the remarks of Carnduff, J., in Lakhi Narayan Ghose v. Emperor [1910] 37 cal. 221 and of Knox, J. in Emperor v. Mohan Lal [1904] 27 All. 25. But, in the present case, Mr. Ferrers has directed the Magistrate, who discharged the accused, to commit the two petitioners to the Sessions Court over which he presides. That, I think, clearly amounts to committing the case for trial within the meaning of S 556, Criminal P.C. It is true that that section does not say ” or cause to commit for trial. ” But the plain effect of his order is to commit the petitioners for trial, and I think the ordinary maxim qui facit per alium facit per se applies to cover a ease of this kind. And, in connexion with this, I think, it is also useful to draw attention to the fact that, whereas under the Code, as it originally stood, the Court of Session could, under Section 477, directly commit for trial persons that it thought had perjured themselves before it, that power no longer exists, as the section was repealed by the amending Act 18 of 1923.

11. The Joint Committee’s Report of 1922, cited in Sohoni’s Criminal P.C. at p. 1005, shows that that was done because the Committee did not think it desirable that the Court which had instituted the proceedings should dispose of the case itself. That is a further reason, to my mind, why the action of the Sessions Judge in directing the committal of the accused is open to legal objection. The object of the law evidently is that if there is to be a committal, that committal should be made by an independent Magistrate or other proper authority. Therefore I agree that the orders of the learned Sessions, Judge should be set aside.

12. As regards the further disposal of the matter, in an ordinary ease I should certainly say that the applications for revision, which had been made ,to the Sessions Court of Dharwar, should be transferred to some other Sessions Judge for disposal according to law. But, in the present case, in all the circumstances, I defer to the view of my learned brother that the best course is to direct that no further proceedings in the matter should be taken. We must, I think, give some weight to the District Magistrate’s view that no further proceedings should betaken although I do not consider that that alone should be conclusive in a case of this kind. It might be that the Sessions Judge had a clear case for ordering a prosecution, and that the mere wish of the District Magistrate that the prosecution should not take place, should not be allowed to prevail over the Sessions Judge’s view. But, in the present case, it is certainly a matter, at any rate, of some doubt as to whether or not the Magistrate, who made the inquiry into the case, could not legally come to the conclusion that the evidence of the prosecution was so unreliable that there was really no prima facie case for committing the accused to the Sessions.

13. That, at any rate, is a position which is arguable under the rulings in In re Bai Parvati [1911] 35 Bom. 163, and Emperor v. Bai Mahalaxmi [1915] 17 Bom. L.R. 910. Therefore, the view of the Sessions Judge that in any case the charges against the two petitioners should be brought before the Sessions Court is not necessarily correct. Also the circumstances, to my mind, make it extremely doubtful whether further proceedings are likely to result in a conviction. Accordingly, I assent to the order proposed by my learned brother.


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