Patna High Court
Emperor vs Nawal Kishore Missir And Ors. on 11 January, 1929
Equivalent citations: 115IND. CAS.692, AIR 1929 PATNA 121
JUDGMENT Wort, J.
1. This is a reference under Section 438 of the Criminal Procedure Code. The learned Sessions Judge of Monghyr recommends that the order made by Mr. Majid, committing certain persons to take their trial in the Court of Session should be quashed. Undoubtedly the commitment order was made under Section 213 of the Criminal Procedure Code and it can be quashed, therefore, only by reason of the jurisdiction given to the Court under s.215 of that Code. That section, states that such commitment can be quashed by the High Court only on a point of law.
2. As a result of the occurrence which gave rise to the charge in this case one person lost his life and another person was more or less seriously wounded and on the side of the complainant also I understand certain injuries were received.
3. Now it would appear that there are discrepancies in the prosecution story which would give rise to a suspicion, for instance, the place of occurrence has been altered. The story as told by the witnesses before the committing Magistrate in that particular differs from that set out in the first information. Another matter in this connection is that there were two spear heads found in the chest of the deceased which, from their appearance, would give rise to the suggestion that they had not been there in the first instance, at the time and place of the occurrence; they are spears without shafts and the place in the spear-head in one case where the shaft in ordinary circumstances would be placed was, as I understand from the facts on the record, full of mud.
4. At the time of the recording of the First Information it appears that at first the complainant had a paper in his hand from which he appeared to be reading which was taken from him, also at the same time there was a person named Gulab who appeared to be prompting him.
5. Now the learned Magistrate in his commitment order has discussed these matters and has stated the extent to which, in his view, they may tell against the prosecution case. But having regard to the fact that there are at least no less than six eyewitnesses, after giving due weight to the arguments on behalf of the defence in respect of which these discrepancies to which I have referred give rise, he states: "I have carefully considered all these points and have come to the conclusion that they do not entirely demolish the prosecution case; and then he goes on to say that "Durgi was brutally murdered, and Biram had injuries caused by a sharp instrument."
6. That the Magistrate once having stated that, namely, that the discrepancies do not entirely demolish the prosecution case, can there be any doubt that he exercised his discretion properly when he says in a latter part of his order:
I hold that a prima facie case has been made out against the accused.
7. The learned Sessions Judge in his letter of recommendation discusses these discrepancies at length, and it is quite clear that he is of the view that the evidence adduced on behalf of the prosecution in the circumstances is entirely incredible, and he, therefore, is of the opinion that there is no kind of prima facie case on the record. Therefore, his recommendation.
8. Now I am in no way concerned with the facts of this case. I have to ask myself whether the learned Sessions Judge has advanced as his reason for a recommendation to this Court, a point of law. Quite clearly, on the face of his letter of recommendation, he has come to the conclusion at which he has arrived by reason of the fact that he disbelieved the prosecution story in its entirety.
9. Mr. Hasan Imam in support of the recommendation of the learned Sessions Judge presses me with the case of Jogeshwar Ghose v. King-Emperor 5 C.W.N. 411. In that case this question under Section 215 arose, and in the course of the judgment of the Court it is stated, after a certain discussion of the fact:
It may be contended that that fact is for the consideration of the Jury.
10. The prosecution in the case was for perjury, and the main point upon the facts was whether two different statements which had been made by the accused were entirely contradictory and it is to these that the learned Judges referred when they say it may be pointed out that the fact is for the consideration of the Jury. But the judgment goes on to state:
But this Court has undoubtedly to consider whether there is such evidence as would justify the case going before a Jury. If the case is such that the Presiding Judge would, if he had the power, withdraw it from the Jury, we think it would not be right to allow the commitment to stand.
11. And in an earlier part of the judgment the learned Judges state:
Insufficiency of evidence has never been treated as a ground for quashing a commitment, but this Court following the principle laid down by the Courts in England has held that the absence of evidence to warrant a commitment is a point of law and may furnish a, good ground for quashing the commitment.
12. Now if I am to take the law in England as my guide in this respect, there can be no doubt as to what is meant by 'insufficiency of evidence' in the sense in which the Court referred to in the case in Jogeshwar Ghose v. King Emperor 5 C.W.N. 411. 'Insufficiency of evidence' according to the Law of England, is this, the taking of evidence and believing it, and, therefore, taking it at its face value, it does not constitute or disclose a case against the accused.
13. Now any difficulty which might arise from the decision in the case of Jogeshwar Ghose v. King Emperor 5 C.W.N. 411 arises, in my opinion, by reason of the language used by the learned Judges which would from one point of view give rise to some ambiguity.
14. As I understood the argument of Mr. Hasan Imam, who appeared in support of this reference, he would have me interpret the statement which I first read, namely, "If the case is such that the Presiding Judge would, if he had power, withdraw it from the Jury" on a consideration of Section 289 But as I understand his argument this morning, he appears to contend that that was not the case that he was advancing during the course of his argument yesterday afternoon. But whether I misunderstood Mr. Hasan Imam, or not, I would venture to suggest that the words which 1 have read which appear in the course of the judgment in the case in Jogeshwar Ghose v. King-Emperor 5 C.W.N. 411 are to be interpreted by a reference to Section 28(sic). Section 289 of the Criminal Procedure Code, lays down the procedure of a Sessions Judge in a Sessions trial, and it clearly lays down that he has no power to withdraw a case from the Jury, but in certain circumstances in a trial by Jury he is entitled to direct the Jury to return a verdict of not guilty. But that gives him such power only where, as Sub-section (2) of Section 289 states, there is no evidence. That seems to me a mere declaration of what I stated to be the law in England in this regard.
15. Mr. Pugh, who appears against the reference, quotes a case, Sheobux Ram v. Emperor 9 C.W.N. 829 : 2 Cr.L.J. 534. Before I go into the details of that case, I would say that Mr. Hasan Imam states that this case which Mr. Pugh has referred to does not deal with this principle at all but the case in Jogeshwar Ghose v. King Emperor 5 C.W.N. 411 is an authority on this point if there be such.
16. As I have already stated, any difficulty which arises from the case in Jogeshwar Ghose v. King-Emperor. 5 C.W.N. 411 is due to the somewhat ambiguous language which was used by the learned Judges in that case. But when we come to a consideration of the case in Sheobux Ram v. Emperor 9 C.W.N. 829 : 2 Cr.L.J. 534 it seems difficult to contend that this principle was not present to the minds of the Judges. At any rate this much is clear that before they could come to a consideration of the point which was before them, they were bound to consider and to be satisfied in their own minds if the principle could apply to the facts and in that sense in any event they dealt with this question specifically. There was a difference of opinion between Mr. Justice Henderson and Mr. Justice Geidt and it was referred to a third Judge Mr. Justice Harington.
17. The difference of opinion between the two first named Judges was as to whether the facts constituted a crime; in other words whether the facts as set out, if believed, did constitute the offence of abetment. Mr. Justice Henderson in considering the question before him states:
But apart from this consideration I have no hesitation in finding for the reasons which I have stated that there is nothing in the evidence recorded by the Deputy Magistrate or by the Assistant Settlement Officer to show that the petitioner abetted the commission of any offence. It is not," he adds "as I have said a question of the value of evidence. In my opinion there are no materials whatsoever from which it can be inferred that the petitioner abetted the offences.
18. In a later part of his judgment he states:
Even if it be possible to say that there is some evidence which might be considered against the petitioner it is, I consider, of such an exiguous character that it might be and I think ought to be disregarded.
19. Mr. Justice Geidt in the course of his judgment states. "As regards the second ground" that is the point which we are considering in this case "Mr. Jackson has contended that there is no evidence that the petitioner abetted".
20. Now he states the principle in a later part of his judgment in these words:
It is in my view, quite outside our duty on this occasion to express an opinion whether from these materials the correct inference is that the petitioner did or did not know of the falsity of the evidence and did or did not instigate the giving and using of the false evidence. That is a question for Judges of fact.
21. And he further states: "Whether these considerations override the facts which I have mentioned as relevant is a matter which can not be decided without an appraisement of evidence and a balancing of probabilities.... A commitment once made to a Court of Sessions can be quashed only on a point of law. Whether the evidence be strong or weak, sufficient or insufficient to justify a conviction is a question of fact and not of law".
22. It is quite clear from the judgments of the two Judges who disagreed as to whether the evidence did constitute an offence that they laid down quite clearly that the appraisement of the evidence was a question of fact and not a question of law.
23. The matter, as I have stated, was referred to Mr. Justice Harington, and in the course of his judgment in preparing himself to consider the facts of the case, he states:
The test which in my opinion should be applied to decide whether a committal ought or ought not to be made on the facts is this--assuming that the whole of the evidence telling against the accused is true, is there a case which a Judge at a trial could leave to a Jury?
24. I fail to see how the case in Jogeshwar Ghose v. King Emperor 5 C.W.N. 411 disagrees with the decision in Sheobux Ram v. Emperor 9 C.W.N. 829 : 2 Cr.L.J. 534. But this matter has been further considered in other cases. If in fact Section 289 gives any guidance, the matter is put beyond doubt in the case of Queen-Empress v. Munna Lal 10 A. 414 : A.W.N. (1888) 129 : 13 Ind. Jur. 76 where it is stated that the expression "there is no evidence" in Section 289 cannot be extended to mean no satisfactory, trustworthy or conclusive evidence. But, as I have said, this matter has been further considered in other cases which have been brought to my notice. One is the case of Burjorji Nowroji Kelawalla v. Emperor 112 Ind. Cas. 107 : 30 Bom. L R. 639: A.I.R. 1928 Bom. 220 : 29 Cr. L.J. 987. This is not an authorized report, but I propose to refer to it because it refers to other cases on this matter, and, in the course of the judgment in the case, Mr. Justice Fawcett stated. "The Magistrate may be right or wrong in supposing that it was a case which he ought to have committed; but he has exercised his discretion, and I think the case stands on a very different footing to what it would be if he had discharged the accused and we had been asked to interfere and direct a committal."
25. In the course of that judgment, the learned Judge referred' to the case of Mahomed Moidin v. Emperor 76 Ind. Cas. 821 : 1 R. 526 : 25 Cr. L. J, 261 : A.R. 1924 Rang. 165 where the authorities on this case had been collected and discussed, and the conclusion at which I have arrived on this point is substantiated.
26. Now what 1 have to ask myself in the light of these authorities is whether the Sessions Judge has recommended the quashing of this commitment on a point of law, or is his recommendation based on the supposition that the evidence is not satisfactory, trustworthy or conclusive. To discuss that question in the light of the letter of reference of the Sessions Judge would be idle. On the face of it, he has come to the conclusion that he does not believe the prosecution evidence, and, therefore, from that point of view he says that there is no prima facie case. For these reasons, in my judgment, the reference is bad in law and it must, therefore, be rejected.