Emperor vs Gourishankar Bohidar

Rowland, J.—This appeal has been presented by the Local Government against an Order of the Sub-divisional Officer of Sambalpur Sadr granting permission to a complainant Rajnarayan Tewari and an accused Gouri Shankar Bohidar to compound an offence punishable u/s 420, Penal Code, alleged to have been committed by the latter. After giving this permission and accepting the petition of compromise the Magistrate acquitted the accused u/s 345 (2), Criminal P.C. The nature of the case was cheating by means of a note doubling trick. The note doubler is said to have been a person named Zahir Singh also called Doubler Babu and the part played by Gouri Shankar Bohidar who was a local pleader is said to have been that he provided Zahir Singh with an introduction to prospective victims from among the pleader''s own clients. Evidence of how Rajnarayan Tewari was so duped was before the Court and a charge had been framed. Among the witnesses examined there were two, namely, Radhashyam Agarwala, P.W. 2 and Sagarmal Modi, P.W. 12 who deposed that Gouri Shankar Bohidar had spoken to them also telling them that there was a man who could double notes and advising them to bring currency notes of their own for the purpose of doubling. That evidence no doubt was relevant for deciding, should the matter have been tried out, the question of the intention with which the accused acted there being, apparently some suggestion on the part of the defence that this accused was as innocent a dupe as the other victims. When the parties to the criminal case came before the Court to compromise, the Public Prosecutor objected on behalf of the Crown on the ground.

that a gang consisting of Zahir Singh, the accused and others have in pursuance of a wide criminal conspiracy been operating in this town in doubling notes and cheating people for a long time. Information has also been received by the police that members of this gang have in pursuance of the conspiracy perpetrated similar heinous crimes in the neighbouring states and in the Central Provinces.

It was also said: "that now Zahir Singh has been arrested and framing of a charge u/s 120B, Penal Code is necessary." The Magistrate in dealing with the petition and the objection observed that before him there was only one man alleged to have been, similarly cheated, that in his case no charge sheet had been submitted and that he did not see material on the record before him to justify his framing a charge of criminal conspiracy. But it was further urged before him that the trial of Zahir Singh who had been arrested would be rendered difficult if the case was compromised. He was not impressed by this argument observing:

If the prosecution can adduce evidence of criminal conspiracy there would be no bar to the trial of Zahir Singh for that offence as the accused is not being acquitted of criminal conspiracy.

Against this order treating it as an order of discharge or of dismissal of complaint the Crown moved the Sessions Judge of Cuttack Sambalpur in revision u/s 435, Criminal P.C., asking for further enquiry on the ground that the Magistrate who as we have already seen framed a charge u/s 420 had also been asked to frame charge u/s 120B/420 or Section 489A, Penal Code. The learned Sessions Judge thought that there were materials on the record if believed to justify a charge of conspiracy because he said there is evidence that Gouri Shankar Bohidar brought his partner to Sambalpur and kept him there. The learned Judge, however, declined to order further enquiry because he felt convinced that neither Gouri Shankar nor Zahir Singh his partner had any intention of really forging, producing and uttering counterfeit notes and that what had been done was a conspiracy to cheat and cheating and nothing more. Taking this view he declined to order further enquiry because he thought that after further enquiry is ordered into offences u/s 120B read with Section 420, the prosecution will immediately find itself in an insuperable difficulty because Gouri Shankar has already been acquitted u/s 420. Therefore, I am asked to order a further enquiry in which he will be charged with conspiracy to commit an offence of which he has already been acquitted. This the Sessions Judge thought would be contrary to Section 403, Criminal P. C. It was after the failure of this application that the Local Government decided to prefer the present appeal against the order of the Magistrate permitting the composition of the offence and acquitting the accused and also to make an application in revision against the order of the Sessions Judge refusing to direct further enquiry.

The presentation of an appeal against an order of acquittal u/s 345, Criminal P.C., is a procedure for which we have been shown no precedent. We have not been shown that the act of the Magistrate was in any way illegal in accepting the compromise which it was within the sole discretion of the Magistrate to allow or refuse and I am of opinion that such an appeal should not be entertained in the absence of proof of the grossest misuse of his discretions which is not shown.

Turning now to the application in revision, it may be doubted whether any such application would have been thought necessary had not the learned Sessions Judge expressed a different view of law from that taken by the Magistrate as to the existence of a bar to a trial on the charge of criminal conspiracy; and here I may say that the g view taken by the Magistrate appears to be more correct than that adopted by the learned Sessions Judge. Section 403 protects a person who has been once tried by a Court of competent jurisdiction for an offence, and convicted or acquitted of such offence, from liability to be tried again for the same offence or on the same facts for any other offence for which he might have been charged u/s 236 or convicted u/s 237 in the same trial, and presumably it is to this provision that the Sessions Judge was referring; but Sub-section (2) provides that a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial u/s 285(1). Now let us see the case which the Public Prosecutor desires to make against the respondent. It is apparently alleged that he and Zahir with or without the aid of other persons had conspired together to commit a series of acts of cheating. If so, this was an offence punishable u/s 120B, Penal Code, and is not identical either with the conspiracy to commit one such offence in respect of any particular person or with the actual commission of any one such offence. The distinction is drawn in Pulin Behari Das v. Emperor (12) C.W.N. 1105 where it is pointed out that overt acts may properly be looked at as evidence of the existence of a concerted intention and in many cases it is only by means of overt acts that the existence of the conspiracy can be made out; but the criminality of the conspiracy is independent of the criminality of the overt act. It is not clear on what ground the Sessions Judge could have thought that an acquittal for the particular overt act of cheating Rajnarayan Tewari could be a bar to the prosecution of the respondent, on a charge of conspiracy to commit a series of acts of cheating or again on a charge that he in pursuance of such aconspiracy had successfully cheated Sagarmal Modi or had unsuccessfully attempted to cheat Radhashyam Agarwala.

But in order to succeed in this application for revision it is for the Crown to show that the Magistrate has passed an order amounting to the dismissal of a complaint or the discharge of an accused person. Now a perusal of the petition of Rajnarayan Tewari on which these proceedings were started clearly shows that it is a simple complaint of cheating the complainant. There is no doubt mention of Section 489A/120, Penal Code, but that was matter of which the Magistrate did not find any evidence. Nothing is said in the petition about conspiracy and no reference is made to Section 120B. This petition was referred to the police for investigation and report and the Sub-Inspector reported "the charge is well proved against the accused u/s 420, Penal Code." There is nothing in the police report about any conspiracy. That being the case which the prosecution had put forward I do not think that there is any ground for interference in revision unless and until there is placed before the Magistrate either a fresh complaint or a police report of facts amounting to an allegation of the offence for which it is sought to put either Zahir Singh or Gouri Shankar or both on trial. I would dismiss the appeal as well as the application in revision.

Manohar Lall, J.

I agree.