Bhikhari Singh vs Emperor

Fazl Ali, J.—This is an appeal by one Bhikhari Singh who has been convicted u/s 120-B, Penal Code, and sentenced to undergo rigorous imprisonment for one year. The circumstances under which the appellant was placed on his trial were as follows.

In execution of a rent decree obtained by Tribhuban Singh and others the holding of one Jhopari Chamar was sold and purchased by one Bhusi Singh. Within thirty days from the date of the sale on 8th July 1933, an application accompanied with chalans was filed before the Munsif in whose Court the execution proceedings were pending in which an offer was made to deposit the decretal

amount and the Court was asked to fill in the amount and pass and check the chalans with reference to the record of the case so that the money may be deposited.

It is needless to state that the petition purported to be on behalf of Jhopari Chamar the tenant-judgment-debtor.

The prosecution case however is that in fact the petition had not been made by Jhopari Chamar but one Bajrangi Singh posing as Jhopari Chamar before the clerk who had written the petition and the Mukhtar who had endorsed his identification, has put his thumb mark on the petition and the chalans, and one Deonanadan Singh describing himself as Deoki Singh had signed the documents for the petitioner. It is also stated that the appellant Bhikhari Singh had introduced Bajrangi Singh as Jhopari Chamar to the pleader''s clerk and supplied particulars of the case to enable him to draw up the petition and the chalans. Tribhuban Singh one of the decree-holders who had been watching the movements of these persons, promptly brought the matter to the notice of the registrar who after some enquiry reported the matter to the Munsif concerned.

The Munsif started a proceeding u/s 476, Criminal P.C., and made a complaint to the Magistrate against Bajrangi Singh, Deonandan Singh and Bhikhari Singh, in which after referring to the facts of the case he stated in his complaint as follows:

The accused Bhikhari Singh and Deonandan Singh aided and abetted committing crime of forgeries in the aforesaid manner and are parties to forgeries. Having thus fabricated and forged the petition and the chalans the accused Bajrangi Singh, Bhikhari Singh and Deonandan Singh got the petition and chalans filed in the Court in order to defraud this Court and by means of this fraud to procure from the Court orders to set aside the sale... to the wrongful loss of the auction purchaser Bhusi Singh for the wrongful gain of the accused Bajrangi Singh. A prima facie case has thus been made out against the accused for their prosecution under Sections 466 and 471. I therefore complain against the above named persons for their prosecution under Sections 465 and 471 or under any other section that they may be found guilty.

These three persons were ultimately placed on their trial, the first two on charges under Sections 465, 468 and 120-B read with Sections 468 and 471, Penal Code, and Bhikhari Singh only on a charge u/s 120-B read with Sections 468 and 471, Penal Code.

On 25th January 1934 the trial, began and five persons were chosen as jurors, a note being made in the order sheet that the same persons would act as assessors so far as the charge u/s 120-B, which was not triable by jury was concerned. In his charge to the jury however the learned Judge does not appear to have stated that the persons who were acting as jurors were to act as assessors with regard to the charge u/s 120-B. At the conclusion of the trial the learned Judge recorded the verdict of the jury but he did not as required by Section 309, Criminal P.C., record the individual opinions of the assessors so far as the charge u/s 120-B was concerned. In his order-sheet of 29th January 1934, it is noted that:

the Court agreeing with four assessors and disagreeing with the fifth found the accused Bajrangi Singh and Bikhari Singh guilty u/s 120-B,

but from the judgment it appears that this was a mistake. As a matter of fact the learned Judge has convicted the accused disagreeing with four of the assessors and agreeing with the fifth.

The conviction of the appellant is now attacked as illegal on the grounds of non-compliance with Section 196-A and 309, Criminal P.C., respectively. Section 196-A provides that no Court shall take cognizance of the offence of criminal conspiracy punishable u/s 120-B. Penal Code, in a case where the object of the conspiracy is to commit any non-cognizable offence or a cognizable offence not punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, unless the Local Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the Local Government has, by order in writing, consented to the initiation of the proceedings.

It is further provided that where the criminal conspiracy is one to which the provisions of Sub-section (4), Section 195 apply, no such consent shall be necessary. It is not disputed that the prosecution of the appellant u/s 120-B was never sanctioned by the District Magistrate but it is urged on behalf of the Crown that no such sanction was necessary as the matter is covered by Section 195, Sub-section (1), Clause (c). Under this clause no Court can take cognizance of any offence described in Section 463 or punishable u/s 471, etc, when such offence is alleged to have been committed by any party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.

It is further provided that the provision of Sub-section (1) with reference to the offences named therein apply also to criminal conspiracies to commit such offences and to the abetments of such offences and attempts to commit them. The question therefore to be considered is whether any complaint was made by the Munsif against the appellant charging him with an offence u/s 120-B.

It is conceded that the Munsif did not in terms refer to Section 120-B in his complaint, but the mere omission of the section may not be material if upon a reading of the complaint it should appear that a charge u/s 120-B was contemplated. In this particular case however the omission to refer to Section 120-B is material because the Munsif definitely refers to those sections which is in his opinion applied to the facts of the case.

On a careful reading of the complaint the only legitimate inference that one can draw is that it did not occur to the Munsif that an offence u/s 120-B had been committed and the Munsif accordingly, while mentioning the specific sections under which the accused was chargeable, did not refer to Section 120-B. The fact that Section 196-A has been inserted in the Code of Criminal Procedure shows that the Legislature is anxious that prosecution u/s 120-B should not be started indiscriminately. It would therefore in my opinion be violating the spirit underlying Section 196-A if a person were allowed to be convicted of an offence u/s 120-B even though his prosecution under that section is neither sanctioned by the District Magistrate nor was within the contemplation of the officer making the complaint u/s 476.

The question still arises whether any significance can be attached to the fact that proviso (4) relates not only to a criminal conspiracy to commit the offences mentioned in Sub-section (1) but also to the

abetments of such offences and attempts to commit them.

It is well settled that if a charge is framed for a substantive offence, a person may without any additional charge being framed be convicted of an attempt to commit that offence. He may similarly be convicted of abetment to commit that offence, though on this point conflicting views have been expressed in cases decided under the old Code. But I do not consider that a person can be convicted of the offence of criminal conspiracy without there being a charge u/s 120-B. In any case Section 196-A deals only with the case of criminal conspiracy and not with that of abetment of an offence or an attempt to commit that offence.

In Kali Singh v. Emperor 1924 Cal 53 it was held that the petition for sanction u/s 195 is to be read with the order granting it and the latter is not bad for want of specification of the particulars required by Clause (4) when they are contained in the petition. With this principle I respectfully agree and would point out that the facts of the case are clearly distinguishable from those of the present case. In that case a petition had been filed by the Deputy Inspector General of Police C.I.D., Bengal, before the Munsif setting out in detail the facts constituting the offences for which the sanction was applied and asking him to prosecute the accused persons u/s 120-B read with Sections 209, 467 and 471, Penal Code.

The effective part of the order passed in that application was that the application be allowed. In these circumstances the learned Judges who decided the case rightly pointed out that:

If this order be read with the application all the details required by Sub-section (4) have been supplied.

In my opinion therefore there was no proper complaint u/s 120-B in this case and the conviction of the appellant was therefore illegal. The second contention put forward on behalf of the appellant is also not without substance. Section 309 is mandatory and provides that in a case tried with the aid of assessors the case for defence and prosecutor''s reply, if any, are concluded, the Court may sum up the evidence for the prosecution and the defence and then shall require each of the assessors to state his opinion orally and shall record such opinion and for that purpose may ask the assessors such questions as are necessary to ascertain what their opinions are.

All such questions and the answers to them shall be recorded. As I have already stated the learned Judge did not comply with these provisions with the result that we do not know the opinion which was respectively formed by the assessors about the guilt of the accused, nor do we know the ground on which such opinion was based.

It is possible that if the learned Judge had proceeded to record the opinion of the assessors, he might have found it necessary, in the case of some of the assessors at least, to record the ground for such opinion. Without committing myself to the view as to whether non-compliance with the section would vitiate the conviction in all cases, I think that having regard to all the circumstances of the present case, the conviction of the appellant should not be upheld. I would therefore allow this appeal, and set aside the conviction and sentence passed on the appellant.

James, J.

I agree.