Ambica Singh vs Emperor

Sir Ali Imam, Kt., J.—The facts and circumstances out of which the present revision arises are as follows:--

One Bishun Rai lodged an information before the Police to the effect that the petitioner Ambica and his party came to oust him from a bathan and that in the attempt they inflicted injuries on various people and amongst them on Bishun Rai with a deadly weapon, a spear, committing thereby an offence u/s 326 of the Indian Penal Code. The petitioners Ambica Singh and Bikan Singh have been convicted u/s 323 of the Indian Penal Code and the third petitioner has been convicted u/s 326 of the Indian Penal Code and sentenced to three months'' rigorous imprisonment. Their convictions have been upheld by the Sessions Judge of Chapra.

Mr. Sinha appearing on behalf of the petitioners assails the conviction and sentence passed on these persons principally upon two grounds.

Mr. Sinha''s contention is that on the finding of the learned Sessions Judge I should hold that there was a right of private defence in the accused and that, therefore, the conviction should fail. He has drawn my attention to certain portions of the judgment of the lower Appellate Court, and it appears that on the findings there can be little doubt that the case for the prosecution was materially false. The learned Judge has held that the story that the accused persons proceeded to the bathan of Bishun Rai to oust him is totally false. He holds that the interference was on the part of Bishun Rai''s men with the accused Ambica and his party, who were peacefully engaged in ploughing or some other agricultural operation on their own land. There is, however, a further finding which very largely affects the contention raised by the learned Counsel. The finding is that when Bishun Rai came and interfered with Ambica and his party, the right of private defence was exceeded by Ambica and his men. The finding on this question is:--"In fact I find the prosecution story of the actual assault to be true and I am unable to hold that Bishun Rai gave any such provocation or made any such resistance as would justify the use of the force actually employed."

In this connection Mr. Sinha has drawn my attention to the fact that one of the prosecution witnesses had admitted that the spear wound attributed to Ramdewan had in fact been caused by another man called Kari Singh. This the learned Judge refused to accept and has held that the wound in question was inflicted by Ramdewan himself. On the findings of the learned Judge, therefore, it is quite evident that although Ambica and his party had the right of private defence as against interference on the part of Bishun Rai, yet that right was exceeded. It is impossible for me, therefore, in the face of this finding to accept the contention of Mr. Sinha that the conviction of these men, because of the original right of private defence having been exercised, is unsustainable.

The second branch of the argument of Mr. Sinha, however, stands on a very different footing. Mr. Sinha raises the question of the illegality of the trial before the Magistrate who tried this case and convicted the accused. In order to explain the position taken by Mr. Sinha it will be necessary to refer to one or two incidents that took place before the trial concluded.

It appears that the Sub-Divisional Magistrate of Chapra who took cognisance of this case made it over for disposal to Mr. A. Amir. This officer proceeded with the recording of the evidence on behalf of the prosecution, and thereafter felt that possibly the medical evidence that was to be produced before him might show that it was a case that would fall under sections 148 and 326 of the Indian Penal Code. He, therefore, drew the attention of the Sub-Divisional Officer to what he expected. Thereupon the Sub-Divisional Officer desired him to take the medical evidence. The officer in question, however, proceeded to take the evidence of a large number of prosecution witnesses and ultimately that of the medical witness. The medical evidence revealed the fact that there was an offence committed u/s 326 of the Indian Penal Code. The case was then again referred to the Sub-Divisional Officer, who transferred it to his own file and then made it over to Mr. J.C. Bose for trial. This is the officer who tried the case.

Before, however, sending the case to Mr. J.C. Bose for trial, the Sub-Divisional Officer appears to have satisfied himself as regards the disposition of the accused with reference to a de novo trial. I find in his order sheet of the 25th January the following words:--"The accused will not apply for a de novo trial." On the same day from an order passed by Mr. J.C. Boss it appears that he received the seizin of the case from the Sub-Divisional Officer. In this order sheet also it is recorded that the accused did not desire to have a de novo trial. The trial before Mr. J.C. Bose proceeded from the stage at which it had been stopped by Mr. Amir. Mr. Sinha''s contention is that the accused are not permitted to waive any right which under the law is given to them. Reliance is placed by Mr. Sinha on The Deputy Legal Remembrancer on behalf of the Government of Bengal Vs. Upendra Kumar Ghose , Upendra Nath Mandal and Others Vs. Rampal , Muhammad v. Emperor 2 Cr.L.J. 369; 25 P.R. 1905 Cr.; 91 P.L.R. 1905, King-Emperor v. Sakharam Pandurang 26 B. 50; 3 Bom. L.R. 558. Mr. Sinha contends that the case is not covered by section 350 of the Criminal Procedure Code and that the removal of the case from the file of Mr. Amir to that of Mr. Bose was made u/s 346 of that Code. The learned Government Advocate, who appears in support of the conviction, concedes the proposition that section 350 of the Code is inapplicable to the present case. It is pointed out by Mr. Sinha that section 346 contemplates a case where a Magistrate proceeding with an enquiry or trial before him finds on the evidence that the case is one as to warrant a presumption that it should be tried by some other Magistrate in the district. He contends, therefore, that the language of section 346 clearly establishes the proposition that the Magistrate who originally proceeded with the trial was one that was not qualified to go on with it. With reference to section 350 on the other hand Mr. Sinha points out that the Magistrate who ceased to have jurisdiction was qualified to try the case and was succeeded by another Magistrate who could exercise the same powers as his predecessor. On a careful examination of the language of these two sections I am of opinion that there is considerable force in the contention raised by Mr. Sinha. It is quite evident that in this case Mr. Amir, when he had the medical evidence placed before him, found that he being a Second Class Magistrate was not qualified to proceed with the trial. Therefore, the position occupied by Mr. Amir in this case would be a position distinct from the position of a Magistrate who ceased to have jurisdiction u/s 350 and was succeeded by another Magistrate of equal qualification. Keeping this distinction in view Mr. Sinha contends that in a case falling u/s 350 of the Code the law provides that the accused should have the option of demanding: a de novo trial or of proceeding with it from the stage at which it was left by the Magistrate who ceased to exercise jurisdiction. In this connection it is urged that the facility that has been afforded to the accused in such cases to choose a de novo trial or not is based upon the consideration that the Magistrate who ceased to have jurisdiction was competent equally with the succeeding Magistrate to try them. Section 346 of the Code, according to Mr. Sinha, stands altogether on a different plane. He urges that the Magistrate who was succeeded by a competent Magistrate was one who had not the qualification and, therefore, was not competent to proceed with the case. In this connection Mr. Sinha has also drawn my attention to the section of the Code which provides for the recording of evidence. The section says that the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate. The learned Government Advocate contends that even if the view taken by Mr. Sinha be correct, the defect pointed out by him is only an irregularity and not an illegality. He, therefore, suggests that the irregularity is one that is covered by section 537 of the Code. He also points out that the evidence recorded by Mr. Amir and used by the Magistrate who tried the case would at the very worst mean an irregularity covered by clause (a) of section 537 and is curable by that section. I am unable to accept the contention of the learned Government Advocate and I do not regard the defect under consideration as a mere irregularity. I look upon it as an illegality. It is the very mode of trial that in this case has been affected. The evidence recorded by Mr. Amir in the case was not evidence recorded by a Magistrate who was qualified to try it. On the authority of Subrahmania Ayyar Vs. King-Emperor, , it is an illegality that cannot be cured by section 537. My attention has been drawn to the case reported as Ram Subhag Singh Vs. Emperor, . I have carefully gone through the judgments delivered in that case. They do not seem to affect the point raised by Mr. Sinha.

In the circumstances I hold that the trial of the petitioners was not in accordance with law. I, therefore, set aside the conviction and sentences passed on Ambica, Bikan and Ramdewan and send back the case to the District Magistrate of Chapra with the direction that the accused should be re-tried in accordance with law.