Patna High Court
Kailashpati Mishra And Ors. vs Nand Lal Ahir on 18 July, 1951
Equivalent citations: AIR1952PAT70, AIR 1952 PATNA 70
JUDGMENT Ahmad, J.
1. This is an appeal against an order passed in a proceeding under Section 476 of the Code of Criminal Procedure directing that a complaint for the prosecution of Kailashpati Mishra (appellant No. 1) under Section 211, Indian Penal Code, and another for the prosecution of all the appellants Nos. 1 to 7 under Section 193, Indian penal Code, mall be filed before the Sub-divisional Officer, Arrah Sadar.
2. The proceeding arose out of Sessions Trial No. 42 of 1950 disposed of by the 2nd Assistant Sessions Judge, Arrah, by his judgment dated the 8th July, 1950. The appellants appeared as prosecution witnesses in that Sessions trial, and the case had been started in consequence of a written report given to the police by Kailashpati, the appellant No. 1. The occurrence was said to have taken place on the 21st February, 1950, at about midday, while Jadubans Mishra (appellant No. 4) had come to Arran in connection with some case. The case had been investigated by the Sub-Inspector who appeared as prosecution witness No, 9 at the trial, and a charge-sheet was submitted by him. A charge under Section 436, Indian Penal Code, had also been framed against one of the accused that is Lalmohar Ahir. So the Magistrate committed the case to the Court of Session. The learned Assistant Sessions Judge, to whom the case had been sent tor disposal, found that the entire case and the evidence in support of it were false. In his judgment, he has observed: "I can only say that not only the evidence appears to be unreliable, out every word of what has been said is absolutely false". He has further found, "I think it is fit case in which the complainant and the witnesses should be proceeded against for false information and perjury."
3. It appears that an application under Section 476, Criminal P. C., was thereafter rued by the persons accused in the Sessions trial for the prosecution of the appellants for launching a false case and giving false evidence in support of the same. On the 25th July, 1950, the 2nd Assistant Sessions Judge passed the Order: "Heard. Admit. Issue notice to the opposite parties to show cause as to why the application should not be allowed", Sometime thereafter, the Court of the 2nd Assistant Sessions Judge, Arrah, was abolished. The case was, therefore, withdrawn by the Sessions Judge and transferred to the file of the 1st Assistant Sessions Judge, Arrah, for disposal, on a report given by the 1st Assistant Sessions Judge, the case was again recalled to the file of the Sessions Judge. The learned Sessions Judge, after an inquiry into the case, allowed the application giving the direction as stated above. He has as well come to the same conclusion, as the learned Assistant sessions Judge, that there was no reliable evidence on the record and has further found that the findings given by the learned Assistant Sessions Judge were correct. The grounds given by the learned Sessions Judge for giving the aforesaid findings are, (1) that there was no motive for the accused persons to make a sudden raid on the house of Jaduban Mishra on the 21st February, 1950, at about midday; (2) that there was inherent improbability in the prosecution case, as the mob having come with lathis and bhalas, could not have taken to their heels when Shripati Mishra (appellant No. 3) was said to have come out of his house and chased the mob; (3) that it was equally improbable that the members of the said mob should have set on fire only the straw thatched baithaka of Jadubans Mishra (appellant No, 4) and not his residential house, if they really had any intention to cause any damage to him by fire; and (4) that the investigation made by the Sub-Inspector of Police did not lend any material support to the prosecution version of the alleged occurrence,
4. Mr. R. J. Bahadur, the learned Counsel for the appellants, has raised two points: (1) that the judgment is not in accordance with law, and (2) that there is no finding to the effect that it was expedient in the interests of justice that an inquiry should be made into the offence which appeared to have been committed in or in relation to the said Sessions trial.
5. By the first point, Mr. R. J. Bahadur means that the judgment under appeal is perfunctory and the findings given therein have been just borrowed from the judgment given in the original Sessions trial. I have personally gone through the entire judgment, and I do not find myself in agreement with the contention submitted in this connection. The learned Sessions Judge has given clear grounds of his own for holding that the allegations made in the saneha, which was the basis of the trial, and the evidence given in support thereof are false. Therefore, this point fails.
6. The second point raised by Mr. Bahadur is, as stated above, that there is no finding to the effect that it was expedient in the interests of justice that an inquiry should be made into the offence which appeared to have been committed in or in relation to the said Sessions trial. Section 476, Criminal" P, C. reads :
"When any Civil, Revenue or Criminal Court is, whether on an application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction.........."
The section, therefore, lays down two conditions for its operation. Firstly, a preliminary inquiry, if necessary, shall be held and secondly, that the Court shall record a finding to the effect stated in the section. The idea underlying the inquiry, I think, is that the person or persons likely to be prosecuted should not be taken by surprise, but should be given an opportunity in order to explain their position in connection with the charge alleged against them and in order to place all the necessary evidence in support of the explanation they may like to submit. In this case, the Assistant Sessions Judge, on the 25th July 1950, issued notices to the appellants to show cause as to why the application should not be allowed. On the 29th August 1950, the order passed by the learned Sessions Judge is to the effect. "Petition to show cause filed, Call for the L. C. record and put up on 22-9-1950 for hearing." The case was finally taken up on the 22nd September 1950, when the order passed was to the effect:
"L. C., record received. The petitioner is represented by Mr. Suraj Pd. Sinha, Advocate and the O. Parties are represented by Mr. Lala Sheo Raj Pd. Sinha, Advocate; Arguments heard in full. Fix 29-9-1950 for judgment."
From this, it is apparent that the parties were given full opportunity to place their respective cases, and it was after the consideration of the entire facts on the record and the submissions made by the parties that the learned Sessions Judge came to the conclusion that:
"The application is, therefore, allowed and a complaint shall accordingly be filed before the S.D.O., Arrah Sadr., for the prosecution of Kailashpati Mishra (O. P. No. 1) under Sections 211 and 193 L.P.C., and of the O. P. Nos. 2 to 7 under Section 193, I.P.C."
7. The next condition essential for the filing of the complaint is that the mind of the Court should be conscious to the consideration whether it is expedient in the interests of justice that an inquiry should be made into the offence, and should in fact give a finding to that effect. Technically, Mr. Bahadur is correct in his contention that there is no finding in the judgment of the learned Sessions Judge to that effect in the terms of the section. What the learned Sessions Judge has said in his judgment is:
"this, therefore, is a fit case in which Kailashpati Mishra (O. P. No. 1), should be prosecuted under section 211, I.P.C., for having lodged a deliberately false complaint against the petitioner and others at Arrah Muffasil, P.S., on 21-2-1950, and he along with O. P. Nos. 2 to 7 should also be prosecuted under Section 193, I.P.C., for having given deliberately false evidence in the aforesaid sessions case in support of the prosecution version of the alleged occurrence."
This, to my mind, is substantial compliance with the provision of the section. This finding does amount, in substance, to the conclusion that "it is expedient in the interests of justice that an enquiry should be made into the offence."
8. Mr. Bahadur, in support of his contention, has relied on three cases. The first one is the case of 'In re: Rama Ramayya 56 Mad 157. In that case the sub-divisional Magistrate having passed an order of prosecution forwarded- the records to the District Magistrate for taking action for filing a complaint under Section 476, Criminal Procedure Code, without recording a precise finding that it was expedient in the interest of justice that an inquiry should be made into the offence. In fact, in that case no proceeding under Section 476 had been started and no opportunity had been given to the other side to show cause, if any, in relation to the allegations made against him. Therefore, in that case, it could not be said that the mind of the Court was at all conscious to the compliance of the provision of law laid down under Section 476, Criminal Procedure Code. This cannot be said in the present case. Therefore, that case does not apply to the facts of the present case.
9. The second case relied upon by Mr. Bahadur is 'Keramat Ali v. Emperor', 55 Cal 1312. From the facts stated in the report, it appears that in that case the Sessions Judge did not give the witness an opportunity of being heard before the sanction and prosecution. In the letter of complaint, the learned Judge simply set out three passages from the evidence and directed necessary steps to be taken in the matter. Rankin, C. J., observed:
"It does seem to me that to prosecute people, because they give evidence which is contradictory, merely on the basis of that contradiction, is a very doubtful procedure."
He further observed:
"I look in vain for any recorded finding to the effect that 'it is expedient in the interests of justice that an inquiry should be made' into the offence in this case. As the learned Sessions Judge has not recorded that finding I do not feel it incumbent on me to assume that he property considered this matter and came to a right conclusion."
So, in that case, in the absence of any notice to the party complained against, there was practically no material for the Court to come to the conclusion that it was expedient in the interests of justice that an inquiry should be made. The complaint was based merely on the basis of a few contradictions made in the deposition. Here in this case the parties have been given full opportunity and all the materials for and against the allegation were before the learned Sessions Judge, and in the light of all those materials, he came to the conclusion that it was a fit case in which complaint should be filed. Therefore, I think that the facts of that case are entirely different and the observations made by Rankin, C. J., in the circumstances of that case are not applicable to the present case.
10. The third case relied upon is that of 'Nand Lal v. Emperor', AIR (24) 1937 Lah 867. That is a decision of a Single Judge, Jai Lal, J. He has observed :
"It is the policy of the law, as appears from the amendment of the relevant sections of the Criminal Procedure Code, whereby such prosecutions have not now been left to private prosecutors but their conduct has been entrusted to the Courts, that in dealing with such matters the Court should see that the prosecution is undertaken in the interests of justice and not to satisfy the private grudge of a litigant."
The principle laid down in this observation is, no doubt, unassailable. There may be cases where offences like perjury complained of against a particular person may not be of a kind in which prosecution should be resorted to, because mere contradiction by itself in every case will not attract the operation of the provisions of Section 476, Criminal Procedure Code, but there may be cases where contradictions made in the depositions were conscious and deliberate in order to thwart the administration of justice, or to obstruct the Court in coming to a correct conclusion. In such cases the Court has to consider whether in the light of evidence before it, it is a fit case or that it is expedient in the interest of justice that an inquiry should be made into the offence. In the present case, the Court has found that it is a fit case in which Kailashpati Mishra (O. P. No. 1) and others should be prosecuted for the offences alleged against them. The expression "This is a fit case" amounts, substantially, to the expression that "it is expedient in the interests of justice", that an enquiry should be made into the offence", and, therefore, the provision of law has been substantially complied with in this case. Mr. Chakravarty, appearing for the State, has cited the case of 'Ram Prasad v. Maheshanand', AIR (35) 1948 Pat 5, wherein Reuben, J., has observed:
"and the main contention is that the Courts below committed a material irregularity by not considering, as required by Section 475, Criminal P.C., whether a prosecution was necessary in the interests of justice, it is well established that this point must be considered by the Court : 'Keramat Ali v. Emperor', 55 Cal 1312; Surendra Nath v. Kumeda Chandra', AIR (17) 1930 Cal 352, Nabani Nath v. Emperor', AIR (20) 1933 Cal 147; 'In re Rama Ramayya', 56 Mad 157 and 'Nand Kumar v. Emperor', AIR (24) 1937 Pat 534. The failure to come to an express finding on the point, however, does not necessarily render the order invalid. It is sufficient if the record shows that the Court applied its mind to the point: 'Satish Chandra v. Emperor', AIR, (17) 1930 Cal 705 and 'Supdt. & Remembrancer of Legal Affairs, Bengal v. Ijjatulla Paikar', 58 Cal 1117, and in a case where a grave offence is alleged to have been committed, it has been held that it would be unreasonable for the Court to take the view that the point was not considered: 'Nawabali Khan v. Chandra Kanta', 58 Cal 935. In the last resort, the point may be considered by this Court in revision, if it does not appear to have been considered by the Courts below."
In this case, as stated above, it cannot be said that the Court has not applied its mind to the point I think that it is manifest that the point was considered by the Court below and the Court was conscious to it.
11. I, therefore, find that there is no substance in the appeal and it is accordingly dismissed.