Ajab Lal Rai and another vs Bhagawan Sahu

Dhavle, J.—The petitioners were convicted by a Sacond Glass Magistrate of Monghyr of an offence under S. 352, I.P.C, and.sentenced to pay fines of Rs. 30 each with two weeks'' rigorous imprisonment in default. An appeal which was heard by a Magistrate with appellate powers proved unsuccessful. Rowland, J., issued a rule after observing as follows :

The only substantial point that could be taken was that it was a fit case for compromise, and that the Courts below unnecessarily discussed the question of accounting between the parties which is irrelevant, I will give the parties one more opportunity to compromise.

Mr. S.P. Varma who appears for Bhagawan Sahu, the complainant, informed me at the outset that he was not agreeable to a compromise. The question thus arose whether it was a fact that the Courts below bad unnecessarily discussed the question of accounting between the parties which was irrelevant. It appears that on 28th July last Bhagawan Sahu executed a mortgage bond in favour of the petitioner Ajab Lal for Rs. 465 out of which an old debt was to be fully satisfied and Rs. 170 was to be paid to him in cash. On 29th July Bhagawan Sahu asked the petitioners for the balance of Rs. 170 and it is said that on this occasion not only was he not paid but the registration receipt was snatched away from him. Bhagaw Sahu made several other attempts to o(sic) tain payment; and when on 28th Augu he went once more to the house of t(sic) petitioners and demanded his mone there was an altercation and Bhagaw; received slaps and blows with fists. That was the prosecution story. The defen(sic) was that the story of assault was fal(sic) and that following on the registration the mortgage bond a panchayati w(sic) held to ascertain what was actually di(sic) to Bhagawan Sahu. On calculation was found that only lis. 100 was due him, and not Rs. 170 as claimed by him that he actually accepted Rs. 100 in t(sic) presence of the panehayati but did n(sic) make over the registration receipt to t(sic) mortgagee pending payment by the mortgagee of the arrear ient due to the la(sic) lord the Banaili Raj : that subsequently the petitioner Ajab paid the rent an tried to obtain from Bhagawan the re(sic) ceipt duly endorsed but failed. Bhag(sic) wan Sahu meanwhile concocted thi(sic) false case in order to compel Ajab to pa(sic) more.

On this defence the learned advocat for the petitioners has found it impos(sic) sible to maintain the contention that a(sic) counting between the parties was irr(sic) vant. A vital part of the do(sic) stor was the panehayati, and in order t understand and believe in this panchayati it was necessary to see whether i(sic) fact Bhagawan was entitled to Rs. 10(sic) only. The petitioners'' case taken at it highest was that Rs. 5 had been paid (sic) Bhagawan, Rs. 12 spent as costs of th(sic) registration, and Rs. 30 odd paid o(sic) account of arrear rent to the Banaili Raj Bhagawan only agreed with the first ant third of these items, and even if the petitioners be given credit for item 2(sic) as well, the balance due to Bhagawar would be not indeed Rs. 170 nor also Rs. 100 but Rs. 123. After dealing with the question whether the matter of accounting was irrelevant, the learned advocate urged that the Court3 had made a mistake in the accounting. Here he was on stronger ground. The payment of Ra. 30 odd as rent to the landlord was admitted by Bhagawan Sahu in his cross-examination, but curiously enough the trial Court included it along with the story of the panchayati as a "tama affair nothiog short of a- stage ma(sic) show." he appellate Court also apparently believed the story of payment of the (sic) for otherwise it is impossible to (sic)erstand its observation that: (sic) receipt has been produced in corroboration he oral testimony that rent was paid by Ajab (sic) to Raj Amlas."

If the Courts disbelieved the story of (sic)yment of the rent amounting to Rs. 30, (sic)y were clearly in error in view of the (sic)missin of Bhagawan Sahu himself. It (sic)es not however seem to me that this (sic)kes any substantial difference to the (sic)int directly in issue namely the assault (sic)the complainant which the defence (sic)ught to negative by showing that the (sic)mplainanb had been satisfied at the,(sic)ncbayati by receipt of Rs. 100 and had (sic)t gone to the petitioners again to de-(sic)and his dues. It is impossible to be-(sic)eve that the appellants could have (sic)tinfied him with Rs. 100 only. This (sic)owever does not end the matter. There (sic) a clear point of law in the case of which it is easy to lose sight in the (sic)mewhat remarkable prolixity of the application in revision. This point con-(sic)erns the failure of the trial Court to (sic)ompel the attendance as a defence wit-(sic)ess of one Babu Tapsi Lai, Vice-Chairman of the Union Board, to whom the (sic) had been referred at an early stage or inquiry and report. The witness was (sic)ctually summoned, but did not appear. He wa.3 summoned again by post and (sic)ent a medical certificate expressing his (sic)nability to attend on the date fixed. Upon this the Sub-Deputy Magistrate (sic)uled :

Considering the point urged by the defence pleader I do not think that his evidence in this case is essential. Sol decline to allow the defence any further adjournment.

The trial proceeded, and in his judgment the Sub-Depuby Magistrate commented on Babu Tapsi Prasad''s report that it appeared :

Clear that it was written up by somebody else and signed by him.

He nevertheless did consider the report in relation to the discrepancies, urged before him. The appellate Court however seems to have excluded from consideration the report of Babu Tapsi Prasad with the result that the force of the discrepancies (such as they might be) relied upon by the defence could not have been appreciated. The learned Deputy Magistrate observed that the trying Magistrate:

was certainly Wrong in referring to and commeriting on the report of the inquiring officer without examining him;" and this clearly implies that the appellate Court could not have taken the report into account. This result could not have been contemplated by the law. In Daulat Singh v. Brinda Beldar (1902) 30 Cal 121 it was held that there is no discretionary power given in summons cases (and the present was a summons case) by S. 244, Criminal P,C, to refuse to compel the attendance of a witness upon (sic)om the Court has already issued process. Apart moreover,. from the technicalities of the law, the appellate Court was less than fair to the accused in declining to call his witness or supporting such refusal and declining also to take his report into account, though I do not wish to say anything to minimise the irregularity of considering the report without calling the witness... On this ground then, the application in revision must be allowed. The convictions and sentences passed upon the petitioners are set aside. In view of the circumstances of the case I do not consider it necessary to pass an order that the case be taken up from the stage at which the trial became irregular by reason of the failure of the trying Court to enforce the attendance of the witness.