Patna High Court
Jai Sao And Ors. And Jhari Lal And Anr. vs Emperor on 2 December, 1921
Equivalent citations: 65IND. CAS.484, AIR 1923 PATNA 104
JUDGMENT Jwala Prasad, J.
1. The petitioners eight in number, Raja Ram Sao, Jhari Lal, Balgovind Lal, Gajoo Sao, Chilhauri Sao, Jai Sao, Parshadi Sao, Chamru Sao, of village Aunta, near Mokameh Ghat Station, have been directed by the Sub-Divisional Officer of Barh, by his order dated the 29th of April 1921, to execute bonds of Rs. 100 each, with two securities of Rs. 100 each, to be of good behaviour for one year or in default to undergo rigorous imprisonment for one year each under Section 110(b) of the Criminal Procedure Code. This order has been based upon the finding of the Magistrate that the accused habitually "dealt in goods which they knew to have been stolen from railway goods shed at Mokameh Ghat."
2. Upon the report of the Police at Mokameh, dated the 15th of October 1920, the Magistrate drew up the following proceeding: "Whereas from the report of G.R. Police, Mokameh, dated the 15th of October 1920, it appears that the above named eight accused persons are by habit receivers of stolen property knowing the same to have been stolen, I, therefore, order the above eight accused to show cause at 10 A.M. on 8th November 1920 why they should not be bound down for three years to be of good behaviour under Section 110, Criminal Procedure Code, in terms given below--Raja Ram a bond of Rs. 1,000 with two sureties of Rs. 500 each--other seven defendant bonds of Rs. 100 each with two sureties of Rs. 100 each."
3. Now, the circumstances set forth in the report of the Police referred to above are as follows:
1. That about 302 bags of linseed and other articles were found short at destination from Mokameh Ghat although seals on the waggons were intact, leading to a conclusion that the thefts occurred at Mokameh Ghat before the waggons left the place.
2. That the coolies, who mostly came from the village Aunta, have been generally found concealing the grains from the Ghat Station and disposing them off to their receivers at Aunta.
3. That one gang of receivers, under the leadership of Jhari Sao was prosecute in the year 1913 under Section 110, Criminal Procedure Code, and Jhari and Balgovind were convicted.
4. That it came to light daring enquiry of the proceedings in 1913, that the stolen property received by the than accused receivers was despatched by them by rail to Lakhisarai Station under different fictitious names.
5. That the remnants of the above mentioned gang gradually formed afresh the present gang of receivers under leadership of accused Raja Ram. This time they changed their modus operandi to defy the Police and to avoid detention, that is, they began to send away their stolen property by carts or boats towards Lakhisarai, Barh and other places across the river.
6. In the year 1919 there was an abnormal increase of crime at Mokameh Ghat and about 27 coolies were arrested red-handed carrying property in almost each case towards the village of the accused. Eighteen coolies were similarly arrested in 1918 and eleven in 1920 with more or less the same result.
7. That during the enquiry of this case, it transpired that present accused are mainly responsible for the thefts as receivers and that they actually sent large consignments from time to time to Lakhisarai and Barh par carts and boats.
8. That the accused Raja Ram, Jai, Parshadi and Chamra have transacted in linseed to the extent of Rs., 20,250; in spite of the fact that none of them has got even a small plot of land producing linseed, nor have they been known to have ever imported it from other places.
9. That the accused have been maintaining each a nominal shop only to screen their mala fide dealings with the coolies and to afford the latter opportunities, to frequent their shops with the ulterior object of purchasing things.
4. In order to show that the accused persons had facility in perpetrating the offences of receiving stolen property, the Sub-Inspector in his report has given a description of the situation of the village Aunta, their shops and the Railway transshipment platform, which shows that they are all in close proximity. In his report the Sub-Inspector says that "Aunta is a large village inhabited mostly by Babhar and low class people. Almost every adult male member of the latter class works as a cooly in the Mokameh Ghat Goods Shed where transshipment of goods from B. & N.W. Ry. and E.I. Ry., and vice versa, is carried on a very grand scale. The accused have got nominal shops of groceries. Their shops and houses are located on the outskirts of the village just outside the Railway fencing within easy reach of distance from the Railway Shed. The Mokameh Ghat shed is one of the biggest transshipment stations in India. Some times about three hundred waggons are transshipped in one day. The commodities passing through the shed are of a variety, but chiefly rice, wheat, grain, linseed, sugar, salt and the like. The yard is about two miles in length. A portion of that is tinned,--known as the shed--but without any enclosure. The goods are usually detained for one day, sometimes for two or more, for being transshipped, About 250 coolies are always at work, About 100 of them hail alone from Aunta. A considerable number of these coolies have got every facility of pilfering from the consignments in the shed or carrying away a bag or two as opportunity offers." The plan of the Mokameh Ghat Station, the transshipment platform and the Aunta village, where the shops of the accused are, has been appended to the report of the Sub-Divisional Officer dated the 15th of January 1921. In order to show that the accused are members of one gang associated together for the purpose of carrying on the offence of receiving stolen property from the coolies, the Sub-Inspector says in his diary: "The accused live in one village and are intimate with each other. They have been seen often associating together and with the coolies working in the shed who are admittedly bad characters. They have also been found transacting together with one and the same Mahajan at Lakhisarai, Barh, and Mokameh. They were given an opportunity but could not explain satisfactorily about their transaction and the sudden change in their circumstances. A few years back they were men of no means but now they are men of thousands living comfortably in a high style. "
5. The evidence laid in the present case is enormous. As many as 148 witnesses for the prosecution and 48 witnesses for the defence have been examined, and no less than 115 Exhibits, excluding their sub-numbers, have been produced. By means of the aforesaid evidence the prosecution has tried to establish what is contained in the report of the Sub-Inspector upon which the proceeding under Section 110, Criminal Procedure Code, was come to. The report of the Sub-Inspector does not itself show any specific instance of receiving stolen property in which all the accused were acting jointly and in concert. No doubt, the Sub-Inspector's report says that the accused persons belong to a gang of receivers of stolen property, the conclusion is not justified by the material set forth in the report. The report refers to one gang of receivers of stolen property in 1913 headed by Jhari in which Jhari and Balgobind were convicted but nothing has been stated in report, nor anything shown in the evidence, that the remaining six accused were members of that gang. The present gang is said to have been formed under leadership of Raja Ram and the only circumstances mentioned for thinking that the remaining seven accused were also members of that gang is the fact that four of the accused, Rajaram, Jai, Parshadi and Chamru, have transacted in linseed, etc., to the extent of an enormous sum of rupees, namely Rs. 20,280 with the Mahajans in Lakhisarai, Mokameh and Barh. This circumstance, again, even if accepted as an evidence of association, leaves out of account the remaining four of the accused. It has not been stated in the report, nor shown in the evidence, that the remaining four of the accused had any concern with the transaction referred to above. The facts and incidents relied upon by the prosecution do not establish an association of all the accused in the nefarious act of receiving stolen property. There are, no doubt, certain facts, namely, that they were carrying on shops in the close proximity of the Railway transshipment shed; that they were residents of a village from where Railway coolies are largely recruited; that they were carrying on shops affording facilities to the coolies in disposing of the stolen grains through them, and also giving facility in receiving the stolen goods. Each of the accused holds separate shops in that locality. There is nothing to show that these accused have associated together and received any stolen goods from the coolies. The coolies coming from the village Aunta, as shown above, are about 100 in number. Some of these, as set forth in the report of the Sub-Inspector, have been convicted for theft. No particulars have been given as to which of the coolies have formed into a league with the accused in the present case. The reasons, therefore, for the Sub-Inspector to report that these accused persons formed a gang do not hold good. Therefore, upon his report, the Magistrate could not draw up a charge under Section 117(4) for the joint trial of the present accused upon the ground that they had associated together for the purpose of receiving stolen property. The report of the Police, therefore, if truly analysed, leads only to the conclusion that the accused were receivers of stolen property bat not necessarily the fact that they were members of a gang having associated themselves under a common leader. Raja Ram, for the purpose of carrying on this nefarious act. The Magistrate, in his proceeding under Section 110, Criminal Procedure Code, apparently does not accept the report of the Police as being sufficient to frame a charge of association of these accused persons; for he only says in the proceeding that "the accused are by habit receivers of stolen property." The fact that they are members of a gang or have associated together for the purpose of tarrying their profession of receiving stolen property, is a very material fact which ought to have been clearly stated in the proceeding in question. The proceeding stands in the position of the charge and on the principle of framing a charge, the proceeding must have mentioned the material facts of the accused having associated together or being members of a gang to carry out the offence of receiving stolen property in order to give the accused notice of this so as to enable them to meet it. Upon the charge, therefore, thus framed. I very much doubt whether the accused could be jointly tried. At the very initial stage of trial, that is, just when the accused appeared before the Magistrate in pursuance of the notice served upon them of the proceeding, they took objection to the joint trial of all of them. This application was refused by the Magistrate in the following words: "application for separate trial disallowed without giving any reason for doing sO." This is not the judicial determination of the legal question raised in the accused's petition. The prayer appears to have been pressed again in the source of the argument before the Magistrate who, again, for the reasons set forth in his judgment rejected the contention. In this connection, reference may profitably be made to the petition of Rajaram and Jai Sao, made before the Court of the Sub-Divisional Officer of Barh and the order passed thereon by that officer. The petition runs thus;
6. "That your petitioner's Pleader from the very beginning of the case has been objecting to your petitioner's joint trial along with other accused persons. That your petitioners understand that your Honour once expressed your Honour's opinion that after the close of the case your Honour would consider the propriety or otherwise of your petitioners separate trial. That now, as the prosecution has closed its case except to examine two or three formal witnesses, your petitioners bag to request your Honour to order separate trials. That the prosecution also applied for the separate trial of each accused. That the joint trial is illegal and greatly prejudicial to your petitioners," The order passed on this petition runs thus: "The application is refused. 146 witnesses have been examined and 54 have been cross-examined. The hearing has occupied 19 days already. My opinion has been misunderstood and the words "after the close of the case must be understood literally and not to mean after the close of the case for the prosecution." I have underlined (italicised) the passage in the aforesaid quotation for showing that prosecution also applied for separate trial. Thus, both the prosecution and the accused persistently asked the Magistrate to try the accused separately but the Magistrate had been putting off his decision thereon. The objection was pressed before the lower Appellate Court but was overruled on the finding that there was evidence of joint association of the accused in the commission of the offence of receiving stolen property, and that the Magistrate had properly exercised the discretion in him by the Section 117(4) of the Code of Criminal Procedure. The plea has been taken pointedly before us.
7. We have been taken through the long and voluminous evidence of both the parties in the present case. The learned Counsel for the petitioners has urged strenuously that the evidence, such as that has been accused in the present case, does not show that there was any association of the accused persons for the purpose of perpetrating the offense of receiving stolen property. The learned Assistant Government Advocate, on the other hand, has read the evidence with his comments throughout for the purpose of refuting the argument of the defense and for saying that the evidence was sufficient for establishing that the accused were acting in concert for the purpose of committing the offense for which they have been charged. We have given our anxious consideration to the points urged before us on both sides and we have come to the conclusion that the evidence given in the case, voluminous though it is, has not carried the case of the prosecution an inch further than what was stated in the report of the Sub-Inspector upon which the proceeding under Section 110 of the Criminal Procedure Code had been founded, and what has been shown to us already is insufficient for establishing any criminal association. The learned Assistant Government Advocate has relied upon the same witnesses that have been referred to in the judgment of the Trial Court for the purpose of showing association of the accused persons for committing the offence in question, and I am extremely indebted to my learned brother for furnishing me with an analysis of that evidence which I here quota in extenso with his kind permission: "The witnesses to whom the learned Government Advocate referred on the question of association were Nos. 5, 6, 7, 33 to 38, 41 to 48, 110 and 111.
8. "Witnesses Nos. 5, 5 and 7, are Chaukidars of Aunta and Mokameh Ghat. I take witness No. 5 as a sample of this Part of evidence. He says that the accused are of had character and receive stolen, property from goods shed coolies at the Ghat and that all the eight accused persons sit and associate together. Evidently this statement is not relevant to proof of association 'in the matter under enquiry' required by Section 117(4).
The other witnesses are chiefly cultivators of Aunta. I shall give some sample of their evidence. P.W. No. 33 says that all the accused associate together and send goods together by boat and by cart. This is not evidence of the required association. P.W. No. 34 speaks generally about the accused; he says that they receive stolen property and that they associate together and consult together about the despatching of the property by boat and by bullock cart. In cross-examination, however, he refers specifically only to Jai, Rajaram and Balgobind as sitting together at each other's house and says that he does not remember about the other accused persons and that he only referred in his examination in chief to these three. This is therefore, no evidence of general association. P.W. No. 35 only says that they associate jointly and send their goods by boat and cart. P.W. No. 36 admits that he has never seen the accused purchasing from coolies and consequently his evidence comes to nothing. P.W. No. 37 says that the accused associate together and when they have got consignments together, they send them together by boat and cart. The value of this evidence is shown in his cross-examination by Pershadi where he said that he had been seeing Pershadi taking goods by cart and when asked what he was taking he said that it was Rainchi and Tissi that he was sending to Lakhisarai. The strongest statement is that made by witness No. 46, who says that the accused associate and consult together in purchasing and disposing of property. This statement, however, disappears completely in cross-examination where he says, referring to a meeting of Jai, Jhari, Pershadi and Rajaram, that he did not hear what they were saying or whether they were saying any thing. That is why I said they associate and consult together in purchasing and disposing of the property.
9. The evidence of all the witnesses of this group is similar in character and is equally vague and indefinite.
10. Witness No. 110 says that the accused associate together and consult together and send their goods away together in cross-examination he admits that he has never seen Balgobind sending away goods by cart: the specific instance that he gives of despatch of goods affects only five of the accused: and this statement is difficult to credit. He says the bags of grain were taken from the houses of Parshadi, Jhari, Raja Ram, Gajoo, Chilauri and that he saw this from his house; but he admits that Parshadi's house is not visible from his, nor is Jhari Lal's nor are any of the other accused's. P.W. No. 111 says nothing about association in his examination in chief. The learned Assistant Government Advocate referred to a passage in his cross examination where he said that Parshadi sends goods jointly with the other accused and that he saw him last Bhado. If this witness had been a witness to the association of the accused it is difficult to understand why he was not examined in chief on the point, and this single instance which be referred to can hardly be seriously regarded as evidence of association. My estimate of the evidence has been the same.
11. There is, therefore, no evidence of association of the accused to justify a joint trial.
12. The learned Assistant Government Advocate, however, contends that the proceeding cannot be quashed even if it has transpired during the trial that the evidence given to prove such an association falls short of what is required in law. He contends that there is an allegation and, perhaps, an assertion in the report of the Police, that the accused belong to a gang whose main profession was to receive stolen property and, therefore, the charge or proceeding which was founded upon that report cannot be questioned in the subsequent stage of the trial, although the prosecution might have failed to establish it by evidence. This contention is based upon the decision in the case of Jogendra Kumar Nag v. Emperor 61 Ind. Cas. 233, 25 C.W.N. 334 : 22 Cr. L.J. 377. No doubt, in the judgment of Beachcroft, J., in the case referred to the following passage occurs: "The legality of a joint trial must depend upon what is alleged for the prosecution not on the facts subsequently found to be true. In the very nature of things that most be so. Otherwise, we should be driven to this state of things, that in many cases, there could be no determination whether the joint trial was legal or not till the result of the case was known, a proposition which has only to be stated to be rejected. The case for the Crown was, that certain facts existed; the existence of such facts would undoubtedly prove such association as was necessary to justify joint trial; the legality of the trial could not depend on whether the Crown succeeded in proving those facts." With great respect to the learned Judge. I have no hesitation in dissenting form the view expressed therein. No doubt, in that case, the learned Judge came to the conclusion that there was evidence which, if believed, would justify a joint trial. The facts of that case are different from the present one where we find that there is no evidence of joint association which would justify the joint trial. If, therefore, there was evidence in that case, the question did not arise as to whether the joint trial would not be vitiated merely because there was an allegation on the part of the prosecution which was not established by evidence at the trial. The observation of the learned Judge is, therefore, an obiter dictum. Apart from it, if the mere allegation of the prosecution were to determine the legality of a trial there is no reason why an allegation by the accused refuting the prosecution allegation at the very outset of the trial should not be accepted and he accused tried separately. In the present case, the Police Officer, in the report, stigmatised the accused as belonging to a gang of receivers of stolen property. The accused, at the very first hearing, refuted this charge and said that they were not members of any gang and that the joint trial was illegal. Why should the allegation of the prosecution be preferred to that of the accused for the purpose of initiating a joint trial? There is no justification in principle for this differentiation. What is cause for the gander is cause for the goose. We are, on the other hand, fortified in our opinion by the decision of a Divisional Bench of this Court in the case of Godhan Ahir v. Emperor 47 Ind. Cas. 95 : 4 P.L.J. 7 : 19 Cr. L.J. 899: At page 10 Mullick, J., observed as follows: "It has been strongly contended that there is no evidence of habitual mischief to bring the petitioners within the operation of Section 110(d) of the Criminal Procedure Code, nor of any association such as would justify a joint trial, nor any specific finding as to the part which each of the accused took in the acts which have been held to constitute habitual mischief. These are matters, however, which must be the subject of the new trial, which we now direct the Magistrate to hold. The Magistrate, of course, will bear in mind that a joint trial is not permissible unless there is evidence of something in the nature of conspiracy or of concert in respect of the various acts of habitual mischief to which the witnesses have deposed." In the above quotation the lines have been underlined (italicised) by me. We, therefore, hold that the joint trial of the accused persons was illegal.
13. The learned Assistant-Government Advocate then contends that Section 117(4) is permissive and gives ample discretion to the Magistrate to try the accused persons under Section 110 of the Criminal Procedure Code either individually or jointly. This is the argument which has also been advanced by the lower Appellate Court in support of this trial. Clause (4) of Section 117 of the Code of Criminal Procedure runs as follows: "Where two or more persons have been associated together in the matter under enquiry, they may be dealt with in the same or separate enquiries as the Magistrate shall think just." Ordinarily, under Section 110 of the Code of Criminal Procedure every person has to be tried separately for the offences enumerated therein. Clause (4) of Section 117, Criminal Procedure Code only permits the Magistrate to try "two or more persons jointly when they have associated together in the matter under enquiry."
14. In other words, a joint trial is only permissible when two or more persons have been associated for the purpose of committing the offences mentioned in Section 110, Clauses (a) to (f), which are under enquiry. But for Clause (4) of Section 117 of the Code of Criminal Procedure a joint trial would not have been in any case permitted. The circumstances mentioned therein, namely, the association of several persons in the commission of the offences mentioned in Section 110 of the Criminal Procedure Code must be established in order to entitle the Magistrate to try several persons jointly. This contention of the learned Assistant Government Advocate is, therefore, also overruled.
15. Lastly, it has been contended that the joint trial of the accused cannot be set aside unless it has prejudiced the accused persons. This argument cannot be advanced seriously, for, in a case under Section 110 of the Criminal Procedure Code in which the evidence of bad character of the accused persons and of the individual nefarious acts committed by them from the integral parts of the offence, it is impossible to conceive that the evidence led against one will not at all prejudice the case of the other accused persons assembled together in the same dock.
16. Looking into the evidence, we are satisfied that the accused have been seriously prejudiced in the trial by the evidence in the present case just in the same way as the Sub-Inspector of Police was prejudiced against all the accused on account of having found evidence against some of them. We, therefore, hold that the joint trial in this case was illegal and without jurisdiction. The convictions of the accused persons and the order passed against them under Section 110 of the Criminal Procedure Code must be set aside. It will be open to the Magistrate to try the accused separately if he finds that the evidence is sufficient in the case of each accused person.
17. All the trouble would have been saved had the Magistrate not persisted in trying the accused persons jointly in spite of repeated objections at every stage of the trial on their behalf and notably on behalf of the prosecution itself. The Magistrate in such matters should not brush aside the suggestion of the Public Prosecutor in charge of the case who knows how far he can establish criminal association by actual evidence which the Magistrate cannot anticipate. This is a salutory principle which the Magistrate ignored in this case and took upon himself the responsibility of acting both as a Public Prosecutor and as a Judge with the result that the calculation of the Magistrate to save time and trouble of trying the accused persons separately has some to naught and there has been serious waste of time and possibly prejudice to the case.
Ross, J.
18. I agree.