Patna High Court
Nesar Ahmad vs Ekram Ahmad And Ors. on 19 January, 1966
Equivalent citations: AIR1967PAT181, 1967CRILJ801, AIR 1967 PATNA 181
ORDER Anant Singh, J.
1. This application in revision by the private party is directed against an order, dated the 10th December, 1963, passed by a Magistrate as also against the order, dated the 4th February, 1964, passed by an Additional Sessions Judge refusing to commit the accused persons to the Court of Session.
2. The case giving rise to this application arose on the first information report filed by the petitioner on the 4th August, 1961. After the charge sheet was submitted by the police in this case, the Magistrate proceeded with the trial. The petitioner filed a petition before the Magistrate on the 15th November, 1962, for adopting commitment procedure under chapter XVIII of the Code of Criminal Procedure, because the offences as alleged were triable exclusively by the Court of Session. The learned Magistrate rejected the petition saying that the question would be considered after the recording of the evidence to be adduced by the prosecution. The prosecution closed its evidence on the 9th October, 1968, and 10th of December, 1983, was the date fixed for defence. In the meantime, on the 26th November, 1963, the petitioner applied for adjournment of the case on the ground that he had filed a petition before the Sessions Judge for transfer of the case from the Magistrate's Court, but the petition for adjournment was rejected on the same day.
Again, on the 7th December, 1963, the petitioner filed a petition before the Magistrate for commitment of the accused to the Court of Session and this petition was rejected by the Magistrate on the 10th December, 1963, whereafter some defence witnesses were also examined. The petitioner went before the Sessions Judge against this order and the learned Additional Sessions Judge has upheld the order of the Magistrate and rejected the petitioner's prayer for commitment "solely on the ground of delay", holding that regard being had to the facts of the present case, it was unnecessary to enter into the question whether, on the facts alleged, the case was exclusively triable by the Court of Session. As a matter of fact, neither the learned Magistrate nor did the learned Sessions Judge give his reasons with reference to the facts of the case why it was not triable by the Court of Session. It is in these circumstances that the present petition has been filed.
3. The first information report disclosed that during the relevant night, between the 2nd and 3rd of August, 1961, one of the informant's servants, Md. Taslim, was sleeping at the house of Nesar when the eleven accused persons turned up variously armed with deadly weapons. Some of them assaulted brutally Taslim and subsequently carried him to the house of accused Ekram who is a brother of the informant, Nesar, and kept him detained there and that they tried to put on end to his life, though he was spared at the instance of some of the members of the family of Ekram. The first information report further disclosed that some of the accused persons also assaulted another servant of Nesar, named Nathuni, and that subsequently they had looted away from the house of Nesar various properties such as grains, clothings, cycle etc. The first information report also said that the accused persons had also snatched away one golden earring from the ear of Nesar's daughter-in-law.
4. The informant Nesar had lodged the first information report on the basis of hearsay information since he was himself not an eyewitness to the occurrence.
5. At the trial of the case, the prosecution examined seven persons as eye witnesses, being P. Ws. 1. 2, 3, 4, 7, 8 and 9. P. W. 1 deposed mainly to the occurrence of assault on him saying that subsequently he had been carried to the house of Ekram where he was kept detained, but deposed that he had seen various articles being brought to the house of Ekram where he had been detained P W. 2, the other injured servant of Nesar. deposed both to the assaults as also to the removal of the various articles from the house of Nesar Similar was the evidence of other witnesses both with regard to the assault and removal of the various articles from the house of Nesar.
6. Learned Counsel appearing for the petitioner would contend that the evidence brought on the record would disclose an offence of dacoity, amongst others, inasmuch as assaults on P. Ws. 1 and 2 preceded immediately the removal of articles from the house of Nesar by the eleven persons. He would, therefore, contend that this offence of dacoity is exclusively triable by the Court of Session and not by a Magistrate, as it was beyond the jurisdiction of the Magistrate to try the offence of dacoity. Learned Magistrate, it is argued, had no jurisdiction to minimise the offence and frame charges against the various accused persons under Sections 148, 328, 325, 326, 379 and 380, Indian Penal Code. Reliance has been placed in this connection on a decision of the Supreme Court in Matukdhari Singh v. Janardan Prasad, 1965 BLJR 905: (AIR 1966 SC 356) wherein (at p. 909, paragraph 7) (at p. 359, para 8 of AIR) it was observed:
"It is wrong to contend that the High Court had no jurisdiction in the matter because the trial before the Honorary Magistrate (in so far as it went) was with jurisdiction. If it were so there would be no remedy whenever a Magistrate dropped serious charges ousting him of his jurisdiction and tried only those within his jurisdiction. . For, however hesitant the High Court may be, to set aside an order of acquittal and to order retrial, it has jurisdiction under the Code to do so, if the justice of the case clearly demands it and a case of omission from the charge of a serious offence prima facie disclosed by evidence, is one of those circumstances in which the power can properly be exercised particularly when the charge for the offence, if framed, would have ousted the Court of trial of its own jurisdiction."
Relying on the aforesaid decision of the Supreme Court, learned counsel for the petitioner would emphasise that the learned Magistrate has wrongly assumed jurisdiction of the offence of dacoity, having framed charges of minor offences only with a view to assume jurisdiction.
7. Learned counsel appearing for the opposite party, on the other hand, has taken me through the evidence of material witnesses and would contend that the evidence does not necessarily disclose that the assault committed on P. W.s. 1 and 2 by the miscreants was necessarily for the purpose of facilitating the commission of dacoity by removal of articles. He has further relied on a decision of the Supreme Court in Thakur Ram v. State of Bihar, Criminal Appeals Nos. 165 to 168 of 1962, dated 26-11-1965: (reported in AIR 1966 SC 911) in support of his contention that a private party as a petitioner, other than the State, has really no locus standi to maintain his application; nor was the learned Sessions Judge bound to interfere in exercise of his revisional jurisdiction under Section 487, Code of Criminal Procedure, and order commitment in every case where an offence is exclusively triable by a Court of Session. The observations of the Supreme Court in the above case are as follows:
"The provisions of Section 437, however, do not make it obligatory upon a Sessions Judge or a District Magistrate to order commitment in every case where an offence is exclusively triable by a Court of Session. The law gives a discretion to the revising authority and that discretion has to be exercised judicially".
As to a private party filing an application in revision, their Lordships in the same case have observed :
"In a case which has proceeded on a police report a private party has really no locus standi. No doubt, the terms of Section 485 under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could even have taken up the matter suo motu. It would, however, not be Irrelevant to bear in mind the fact that the Court's jurisdiction was invoked by a private party. The criminal law is not to be used as an instrument of wrecking private vengeance by any aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book."
8. I do not think that their Lordships by the aforesaid observations in connection with the two matters wanted to lay down any general law for every case. The observations were made in connection with the facts involved in those appeals. Their Lordships of the Supreme Court have in the earlier case of Matukdhari Singh, 1965 BLJR 905: (AIR 1966 SC 356), already referred to in paragraph 6 of this judgment, themselves observed:
"..... .and the observations of this Court are illustrative but not exhaustive. The Code gives a wide discretion and deliberately does not specify the circumstances for the exercise of the discretion because the facts of cases that come before the Courts are extremely dissimilar. We pointed out that it would not be right to read the observations of this Court (intended to illustrate the meaning of the Code) as Indicating in advance the rigid limits of a discretion which the Code obviously intended should be developed in answer to problems as they arise."
9. As to the question whether the revisional powers of a High Court under Section 439, Code of Criminal Procedure, can be invoked at the instance of a private party other than the State, their Lordships of the Supreme Court in K. Chinnaswamy Reddy v. State of Andhra Pradesh. AIR 1962 SC 1788, after a review of various cases bearing on the point, have in paragraph seven laid down:
"It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice."
Their Lordships have in the same judgment given Instances where the High Court in revision can Interfere and one such Instance is where the trial Court has no jurisdiction to try the case, it has still acquitted the accused. It would appear that the Supreme Court did not mean to lay down a general law that a private party cannot move the High Court to invoke its revisional jurisdiction under Section 439, Code of Criminal Procedure. If the trial of a case by a Magistrate was without jurisdiction, in my 'opinion, the Sessions Judge in exercise of his powers under Section 437 and the High Court in exercise of its powers under Section 439, Code of Criminal Procedure, must have to interfere, otherwise the trial would be void.
10. The question for consideration, however, is whether in the circumstances of the present case, it can be definitely said that the offences complained of, necessarily, disclosed an offence of dacoity which would exclusively be triable by the Court of Session and not by a Magistrate. I have already given the gist of the evidence adduced on behalf of the prosecution. None of the witnesses seems to have said that the force applied was for the purpose of committing dacoity. The evidence of the witnesses is of general nature that the miscreants, when they came, first assaulted P. W. 1 and then removed him to the house of Ekram. At about the same time, the miscreants also assaulted P. W. 2 and subsequently some of them removed certain articles from the house of Nesar where P. Ws. 1 and 2 had been sleeping from before. On the face of it, it may appear that the assaults may have been calculated to facilitate the commission of dacoity, but it is not possible to say so with any amount of certainty that the force was intended to facilitate the commission of dacoity. It may be that the assault was the primary object of the occurrence and the removal of articles by some of the miscreants was a subsidiary one.
In this view of the matter, I am not in a position to hold definitely that force was applied or intended to be applied for the commission of the dacoity. As defined under Section 390, Indian Penal Code, "theft is robbery If, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of Instant hurt, or of Instant wrongful restraint". Such robbery becomes dacoity, if It is committed By five or more persons. From the evidence, as it has been placed before me, I have not been able to find that any hurt or attempt to cause hurt was made for the purpose of committing theft of any property from the house of Nesar or from any person of his house. In this view of the matter, I do not think it can be said that the Magistrate has wrongly omitted to frame charge under Section 396, Indian Penal Code, and has, instead, framed charges for minor offences triable by him.
11. This application is dismissed. I may, however, direct that further trial of the case may be done by some other Magistrate competent to try it.