Emperor vs Nand Kishore Prasad

Atkinson, J.—This criminal revision comes before me upon a reference made by the learned Sessions Judge of Patna.

It would appear that two persons were charged with an offence u/s 420 of the Indian Penal Code. Abdul Rauf was the principal offender; and Nand Kishore was charged with being an abettor, and with having committed an offence u/s 420 read with Section 109 of the Indian Penal Code. The charge preferred u/s 420 was cognizable and triable by the Deputy Magistrate.

The Deputy Magistrate convicted both the accused; and from this conviction there was an appeal to the learned Sessions Judge of Patna.

Upon the hearing of the appeal the learned Judge affirmed the conviction as against Abdul Rauf, and acquitted his co-accused Nand Kishore, holding that there was no evidence before him upon which he could properly hold that Nand Kishore aided and abetted Abdul Rauf in committing the act of cheating that was alleged against him by the prosecution.

Abdul Rauf maintained assiduously before the learned Sessions Judge that the case against him was one not properly triable u/s 420 of the Indian Penal Code, but that he should have been charged and tried for an offence u/s 477A, Indian Penal Code.

The prosecution contended that the charge preferred against Abdul Rauf u/s 420 was correct in form and should be maintained.

The Crown took no steps whatsoever to impeach the validity of the acquittal of Nand Kishore pronounced by the learned Sessions Judge.

Abdul Rauf applied to the High Court against the order of conviction by the learned Sessions Judge of Patna, and contended that his conviction u/s 420 of the Indian Penal Code was improper; and that he ought to have been convicted, having regard to the facts of the case preferred against him, of an offence u/s 477A of the Indian Penal Code.

A Division Bench of this Court, presided over by Mr. Justice Roe and Mr. Justice Jwala Prasad, held that the contention of Abdul Rauf was correct; and accordingly they set aside the conviction of Abdul Rauf u/s 420 of the Indian Penal Code, and directed that he should be committed to the Sessions for trial for an offence u/s 477A, Indian Penal Code. Nand Kishore was not represented, nor did he appear on the hearing of the application in revision presented to the High Court by Abdul Rauf. The original case against Abdul Rauf, owing to the order of the High Court, was returned to the Deputy Magistrate for commitment to the Sessions.

I should observe that the High Court''s judgment and order is absolutely silent with regard to the acquittal of Nand Kishore. Nor did the High Court take any steps to summon Nand Kishore before it with a view of setting aside the acquittal which had been pronounced in his favour. I, therefore, take it that the High Court never had present to its mind the case of Nand Kishore.

Upon the record of the case being returned to the Deputy Magistrate for commitment, the Deputy Magistrate served notice upon Nand Kishore, dated the 1st April 1919, requiring him to show cause why he should not be committed for trial to the Sessions jointly with Abdul Rauf for an offence u/s 477A of the Indian Penal Code, Nand. Kishore filed a petition byway of cause, relying strongly on the fact that he had been acquitted by the learned Sessions Judge of the offence preferred against him u/s 420. and that until such acquittal was set aside the Deputy Magistrate could not commit him again on the record of the proceedings as they then stood to take his trial for an offence u/s 477 of the Indian Penal Code.

The Deputy Magistrate, judging from his order, dated the 15th of April 1919, which was passed after the petitioner''s petition of'' cause was filed, was of opinion that he was bound, having regard to the order of the High Court, to commit not only Abdul Rauf, but also Nand Kishore to the Sessions, to stand their trial for an offence u/s 477A, without in any way, so far as Nand Kishore was concerned, hearing any additional evidence which would warrant the inference that he was guilty of an offence within the meaning of that section.

The learned Deputy Magistrate expresses his intention of committing both the accused to the Sessions to stand their trial for an offence u/s 477A, Indian Penal Code, on the 15th of April 1919.

Thereupon Nand Kishore applied to the learned Sessions Judge to set aside the order of the learned Deputy Magistrate in so far as it affected his commitment for an offence u/s 477A, Indian Penal Code.

The learned Judge felt, and I think rightly felt, that so long as the acquittal u/s 420 of the Indian Penal Code stood as against Nand Kishore, he could not properly be tried again, upon the record as it then stood, charged with an offence u/s 477, and accordingly the learned Judge referred the case to this Court for directions with regard to the propriety of the order passed by the Deputy Magistrate, dated the 15th April 1919.

I am satisfied that the Deputy Magistrate was wrong in holding that by virtue of the order made by the High Court be was bound to commit Abdul Rauf and Nand Kishore jointly for having committed an offence u/s 477A of the Indian Penal Code.

It may or may not be open to the Crown to proceed against Nand Kishore for an offence u/s 477A, Indian Penal Code, but if they do so they must do so in a proper manner and by a separate proceeding, and not upon the original record as it at present stands, The Government Advocate virtually admits this contention.

Therefore, I intend to set aside the order of the learned Deputy Magistrate, in so far as it expresses an intention to commit Nand Kishore to the Sessions to be tried for an offence u/s 477A read in conjunction with Section 109 of the Indian Penal Code.

Various arguments have been addressed to me as to the right of the Crown to proceed against Nand Kishore independently of the order of this Court made upon the application of Abdul Rauf and notwithstanding his acquittal by the learned Sessions Judge. I do not intend to discuss or consider the arguments addressed to me by the learned Government Advocate. They are, in my opinion, immaterial for the purpose of determining the short point referred to me by the learned Sessions Judge of Patna. It will be sufficient to consider the elaborate arguments of the learned Government Advocate, should any point arise, at a later stage which may require more properly their consideration. But at present. I am satisfied that it was not the intention of the High Court, nor was it possible for the High Court, to direct a prosecution of Nand Kishore, having regard to the. acquittal that had been pronounced in his favour, until at least the High Court had heard Nand Kishore in his own defence, and had satisfied itself that he ought to and should be prosecuted for an offence u/s 477A, Indian Penal Code.

Accordingly I hold that the order of the learned Deputy Magistrate, Mr. Sircar, dated the 15th April 1919, qua Nand Kishore is improper, and that he has no right under the circumstances of this case to commit Nand Kishore for trial for an offence u/s 477A of the Indian Penal Code.