Patna High Court
Jamuna Kanth Jha vs Rudra Kumar Jha And Ors. on 14 July, 1919
Equivalent citations: 52IND. CAS.424, AIR 1920 PATNA 836
JUDGMENT Mullick, J.
1. In consequence of information given to the Police by the petitioner who was one of the persons injured, a number of persons are now under trial before the District Magistrate of Bhagalpur for the offence of rioting. The petitioner has moved for a transfer of the case under Section 626, Criminal Procedure Code, on the ground that the Court has shown bias against the prosecution
2. Although every private person, under the law in England, has a right to set the criminal law in motion, his control over the prosecution is not unlimited. The Crown is in theory the prosecutor for all offences and the individual wronged can only assist the Crown for the purpose of collecting evidence and making the investigation necessary to bring the offender to justice. In continental countries the stricter view prevails that prosecutions, having punishment for their object, can only be instituted by public authority, though a person injured by a crime may join in the prosecution as a partie civile, under certain rules. But even English Law, though it permits A to prosecute B for libel upon 0 or for an assault upon D, although A may have no interest in the matter and although C and D may be averse to a prosecution, declines to regard a criminal prosecution as a private action and a private complainant who sets the law in motion as a party to the proceedings.
3. Nor do the provisions of the Criminal Procedure Code, dealing with the trial of summons, warrant and Sessions cases, lead to the conclusion that the law is different in India
4. In Queen-Empress v. Murarji Gokuldas 13 B. 389 : 7 Ind. Dec. (N.S.) 258 it was held that the complainant in a trial for ordinary assault was not a party to a judicial Proceeding within the meaning of Section 8 of the Indian Oaths Act, and in arriving at this result their Lordships would seem to some extent to have been influenced by the consideration that the Criminal Procedure Code gives the power of compounding offences not to the complainant but to the person injured.
5. In my opinion, strictly speaking, the Code does not recognise a private prosecutor who is a complainant as a party to the case. This seems to be clear from the following provisions of the Code of Criminal Procedure:
(1) Section 340, which enacts that every accused person may, as of right, be defended by a Pleader. (2) Section 417, which enacts that only the Local Government may appeal against an order of acquittal. (3) Section 423 which enacts that no order to the prejudice of the accused can be made in (4) Section 440, which enacts that no party has a right to be heard in revision either personally or through a Pleader subject always to the provisions of Section 439. (5) Section 556, which enacts that no Judge or Magistrate shall try a case in which he is a party or personally interested.
6. It seems to be clear that ordinarily the only persons who are recognised by the Code as parties to a criminal case are the persons who have the right to be heard that is to say, persons who have the right to control the proceedings. These are the Grown, the accused and parties engaged in conducting certain proceedings of a quasi civil nature which, accepting the reasonings in Arumuga Tegundan's case 26 M. 188 : 12 M.L.J. 391 : 2 Weir 678, I assume to be criminal oases within the meaning of the Code.
7. Section 526, however, appears to introduce an exception to the general rule, and Clause 8 of that section seems to contemplate that a complainant is a party interested for the purposes of Clause 3.
8. But the petitioner before us is not a complainant within the definition in Section 4 of the Code and, therefore, he cannot obtain the relief which he seeks. It is contended that complainant in Clause 8 should be construed to include the person who gives in-formation to the Police. I cannot accept this view.
9. If therefore, the petitioner is not a complainant can he, as a person who has set the Police in motion or who has suffered injuries in the riot, intervene under Section 526 as a party interested? The answer, in toy opinion, is in the negative because under the general scheme of the Code he is not a party at all. Clause 3 is intended for the persons named in Clause 8 and such other persons as have a right to be heard.
10. In my opinion there is no necessary connection between the obligation to give information for the preservation of law and order and the right to control the proceedings instituted thereon and, therefore, the provisions of Section 44 and connected sections do not affect the case.
11. There does not seem to be any reported case in this Court bearing directly upon the question before us, but the judgment of Chamier, C.J., and Sharfuddin, J., in the unreported Miscellaneous Case No. 96 of 1916 [Hari Prasad Panday v. Jagannath Singh Misc. Case. No. 96 of 1916] seems to some extent to support the view which I have taken. In the High Court of Bombay their Lordships have held in In Re: Gannon 5 Bom. L.R. 869 that a person merely by his relationship with the accused did not become competent to apply for a transfer as a person interested.
12. For the reasons given above I would dismiss the petitioner's application and direct the trial to proceed.
Jwala Prasad, J.
13. The petitioner lodged an information with the Police Inspector of Sonbarsa Thana on 18th November 1918 complaining against the opposite party of having committed riot in connection with a dispute over a private ferry of Barasome Ghat, armed with deadly weapons, in the course of which the petitioner and other persons were wounded.
14. The Police after investigation submitted a charge-sheet, whereupon the opposite party were put upon their trial before the Sub-Divisional Magistrate of Madhipura. After the examination-in-chief of most of the prosecution witnesses the Magistrate framed charge against the opposite party under Section 147, Indian Penal Code, and one of them, Rudra Kumar Jha, was further charged under Section 148 of the Code. Some of the prosecution witnesses were cross examined op the 29th April and the case was adjourned for further cross-examination to 12th May. During the cross-examination of prosecution witness No. 2, Babu Lal Khirar, the Magistrate drew up proceedings against him under Section 228 of the Indian Penal Code for having refused to give answer to a question put to him by the defence Mukhtar, Bishwanath Jha, and convicted him under that section and sentenced him to pay a fire of Rs. 50. After that the said witness was further cross-examined.
15. The petitioner then on the 20th May filed a petition before the Magistrate for postponing further hearing of the case in order to enable him to obtain a transfer of the case to some other Court for trial, on the ground that the remaining prosecution witnesses were frightened owing to the attitude of the Magistrate against the said prosecution witness No. 2. The adjournment was, however, not granted and the further cross-examination of the witnesses continued. On 21st May the petitioner made another application before the Magistrate for postponing the hearing. This also was rejected. On 27th May the petitioner moved the District Magistrate for the transfer of the case from the file of the Sub-Divisional Magistrate. This was also rejected.
16. On the 2nd June the petitioner moved us for transferring the case from the file of the Sub-Divisional Magistrate to some other Magistrate under Section 526 of the Code of Criminal Procedure. We refused to stay the further hearing of the case in the Court below but ordered the postponement of the passing of the final order by the Sub-Divisional Magistrate until the disposal of the application in this Court. In the meantime we directed notice of the application to be given to the Government Advocate in order to obtain instruction as to whether or not the Crown intended to oppose this application. The Assistant Government Advocate appears and strongly opposes the application on behalf of the Crown both upon the point of law and upon the merits. This is in itself sufficient to refuse the application of the petitioner, as was pointed out in the unreported Miscellaneous Case No. 96 of 1916 [Hari Prasad Panday v. Jagannath Singh Misc. Case. No. 96 of 1916] of this Court. Whatever the rights of a private prosecutor be under Section 526 to apply for a transfer, it is certain that his rights are subordinate to that of the Crown "standing forward as prosecutor on behalf of the subject on public grounds", namely, to maintain order, peace and well-being of the society. A subject may have a right to institute civil proceedings to recover money or other property on account of any wrong caused to him by a crime committed by any person, but as regards criminal prosecution by him it has been observed in Burdett v. Abbot (1811) 14 East 1 at pp. 154, 162 : 104 E.R. 501 : 12 R.R. 450, per Bayley, vide Halsbury's Laws of England, Volume IX, page 233, that Any private person, in the absence of a statutory provision to the contrary, can commence a criminal prosecution, but the prosecution is always at the suit of the Crown. Hence it is that criminal proceedings were called pleas of the Crown. The Crown only can stay criminal process or remit a punishment awarded by any Court."
17. Under the Code of Criminal Procedure, Chapter XVIII, the conduct of the case in Crown prosecutions is vested in the Public Prosecutor and a Pleader appointed by a private person is subordinated to him and may instruct and assist him in the prosecution of the case and is required to act under his directions. The Public Prosecutor has a right to withdraw from the prosecution and to enter nolle prosequi (vide Sections 493 and 494) This right of with-drawal from prosecution may be exercised by a private person conducting a case with the permission of the Magistrate enquiring into or trying the case under Section 495.
18. The application to transfer a case is a proceeding in the course of the conduct of the case and when there is a conflict between the private prosecutor and the Public Prosecutor in the matter of transfer of the case, the right of the former as representing the Crown would naturally prevail. In the present case the prosecution was in the hands of the Public Prosecutor on a charge sheet having been submitted by the Police. Whatever right the petitioner may have by virtue of having commenced the prosecution, his right is subordinated to that of the Crown and when the Crown is opposing the application and does not apprehend any unfairness in the trial of the case by the Magistrate, I am of opinion that the application of the petitioner cannot be entertained.
19. Coming now to Chapter XLIV of the Code of Criminal Procedure dealing with the transfer of criminal cases, Section 588 empowers a Chief Presidency Magistrate, a District Magistrate or a Sub-Divisional Magistrate to withdraw any case from any Magistrate subordinate to him and to enquire into or try himself or refer it for enquiry or trial to any competent Magistrate subordinate to him. This section does not provide as to how and by whom the Magistrate referred to therein may be moved. The Magistrate may act under this section suo motu or on the information supplied by any person
20. We are, however, concerned with Section 526 of the code, under which a High Court is empowered to transfer a case from a Criminal Court subordinate to its authority to any such Court of equal or superior jurisdiction or to itself Section 526 of the previous Code of Criminal Procedure of 1882 gave much larger powers than those conferred by Section 147 of the High Courts Criminal Procedure Act (X of 1875). The present Code of 1898 has made a new provision in Clause (3), which did not exist in the Code of 1882. By this clause "the High Court may either act on the report of the lower Court or on the application of a party interested or on its own initiative." Thus under the present Code "a party interested" has a right to make an application under Section 526 for the transfer of a criminal case pending in a subordinate Court.
21. The question, therefore, for determination is whether the petitioner, being one of the persons injured in the riot and having commenced the criminal prosecution by lodging information with the Police Sub-Inspector, is a party interested within the meaning of the said clause. Section 526 (a) was added by Act III of 1884, Section 12 of the Code of 1884. This section is exactly in the same terms as Clause 8 of Section 526 of the present Code, and empowers the "prosecutor, the complainant or the accused person" to notify to the Court before which the case or appeal is pending his intention to make an application to the High Court under Section 526 for the transfer of the case or the appeal, and upon such application the Court is required to exercise the powers of postponement or adjournment in order to afford the applicant reasonable time for making an application for transfer and for obtaining an order thereon. It is, therefore, obvious that both under the old Code as well as under the present Code the right to make an application for transfer under Section 526 has been conferred upon the complainant in the criminal cases. This is conceded by the learned Assistant Government Advocate appearing on behalf of the Crown.
22. He, however, contends that the word "complainant" used there must be limited to a person who makes a ' complaint" under Section 4, Clause (h), of the Code of Criminal Procedure, "orally or in writing, to a Magistrate with a view to his taking action under the Code" [section 190 (a), and cannot be extended to a person who lodges a first information before a Police Officer and the prosecution is started on the Police report made upon such information. The word "complainant" has not been defined in the Code. If it means only a person who makes a "complaint" within the technical meaning of the term to a Magistrate, the petitioner being then an informant before the Police would not come under it. If, on the other hand, it includes a person who lodges an information of an offence having been committed before the police, the petitioner would come under it and then his right to make an application under Section 526 is obvious. If he is not a complainant as used in Clause 8 of the section, he will 'Still be entitled to apply for a transfer of the case if he is a party interested' within the meaning of Clause 3 of the section unless the said words in the clause are synonymons with the words ' the Public Prosecutor, the complainant or the accused" used in Clause 3. If the Legislature intended that the words "party interested" in Clause 3 should mean only "the Public Prosecutor, the complainant or the accused," there was nothing to prevent those very words. being used for the words "party interested" in Clause 3. The object of the two clauses is quite different. Clause 8 is enacted for the purpose of enabling a Court to postpone or adjourn the hearing of a case where an intention is expressed of making an application for the transfer of the case, whereas the object of Clause 3 is to confer a right of making an application for transfer. An informant of the offence to the Police may not be conducting the case and may not, therefore, be entitled to ask for an adjournment but is nonetheless interested in the result of the case' and consequently in a fair and impartial trial of the same. He has to bear the consequences of the result of the case, such as his liability to be prosecuted if the case were held on account of an unfair trial to be false and malicious. If, on the other hand, the case succeeds, he and he only is entitled to compensation in the Civil Court for the wrongs done to his person or property.
23. There does not appear to be any reason why the right of obtaining a transfer should be conferred upon a person who directly goes to the Magistrate with a complaint, and not upon a person who goes to the Police. It is optional with an injured person to go direct to a Magistrate with the complaint, or to the Police with an information of' the offence having been committed. In either case he is the person who has commenced the criminal prosecution, and in either case under the legal fiction, prosecution is said to be at the "suit of the Crown." If this fiction bars his right of making an application for transfer when he goes to the Police in the first instance, it equally does so when he lodges a complaint be-fore the Magistrate. A fortiori if the fiction is no bar in the latter case, it is not so in the former. Besides, an informant before the Police can, at any time during the Police investigation or after the close of the Police investigation, come to the Magistrate with a grievance against the proceedings adopted by the Police and can require the Magistrate to summon the accused or to call for a charge sheet, and his petition, if any, is to be treated as a complaint and is required to be disposed of under the provisions of Sections 200 to 204 relating to complaints, whether the Police submits a charge-sheet or not. The Magistrate is also entitled to direct the Police to submit a charge sheet even when the latter holds that the case is false; vide Chapter XIV, Sections 154 to 159. Unless the first informant were a party and also a party interested, he would not have been entitled to move the Magistrate for directing the Police to submit a charge-sheet. Under Sections 44 and 45 of the Code there is an obligation upon every private person to give, either to a Magistrate or to a Police Officer, an information of the commission of certain offences mentioned therein, among which offences of unlawful assembly and of riot are included. The person lodging the information is responsible for it and it is his interest to see that a fair and impartial enquiry or trial takes place in respect of the offence of which he has given information, and obviously he is entitled to apply for a transfer under Section 526 when there be a reasonable ground for his apprehension that the enquiry or trial would not be fair or impartial unless there were a statutory bar to his making an application. The distinction between an informant and a complainant appears to be very thin for the purpose of making an application under Section 526 and far from imposing a legal bar upon him to make such an application, Clause 3, newly added, appears to me to amplify the right which would have seemed not to have been conferred by Clause 8 which the words the Public Prosecutor, the complainant or the accused" occur. In respect of many cognizable offences [in which a Police Officer may arrest without warrant and which are punishable for a term exceeding six months within Clauses (f) and (w) of Section 4] such as the case of misappropriation or criminal breach of trust of private money or of cheating of a private person or mischief to private irrigation works and also in cases where the Police Officer takes a strong view against the case and the Magistrate sends for the charge-sheet the conduct of the case is often in the hands of a private prosecutor. In such cases there is no reason why a private person should not be entitled to apply under Section 526.
24. But when the conduct of a case is in the hands of a Public Prosecutor and a Pleader appointed by a private person is should think that the latter alone has a right to make an application and the former is to move the latter or the Crown for an action to be taken under Section 526 through the Crown Prosecutor. This is the case here, and, therefore, in this case I hold that the right of the petitioner is subordinated to that of the Public Prosecutor and inasmuch as the latter opposes it the petition of the former to this Court should be rejected.
25. Now coming to the merits of the case there does not appear to be any substance against the Magistrate is that he punished one of the prosecution witnesses under Section 228 of the Indian Penal Code for refusing to give answer to a question in cross-examination. This was within the right of the Magistrate and does not necessarily impute any unfairness in the trial of the case.
26. The next ground is that the remaining witnesses for the prosecution were frightened by the aforesaid act. This is rather a frivolous and unsubstantial ground. On the other hand, even after the said event the witnesses for the prosecution were examined and yet nothing his been suggested' to show that the Magistrate has exhibited any unfairness in the conduct of the case.
27. The last ground that Babu Viswanath Jha, the Mukhtar for the defense, is a relation of the principal accused Rudra Kumar Jha and is in contact with the trying Magistrate in connection with the Local Bar, the High English School and the Co operative Central Bank, is also unsubstantial and affords no sufficient ground for taking away the case from the file of the trying Magistrate.
28. I would, therefore, reject this application. The record may now be sent down for disposal by the trying Magistrate.