Mahabir Baitha vs Emperor

Scroope, J.—The petitioner Mahabir Baitha filed a complaint against one Nemdhari Mahto and others under Sections 323 and 452, I.P.C., on 9th September last in the Court of the Subdivisional Magistrate of Bhagalpur. The Subdivisional Magistrate, for reasons which are valid, directed a Deputy Magistrate to make a local enquiry and to report u/s 202 as to the truth of this complaint. Babu N.K. Banerjee accordingly held a local enquiry in Mahabir''s village in the course of which he examined the accused and he also examined some witnesses at Bhagalpur in the absence of both parties. The names of these latter witnesses were given to the Magistrate by the accused in proof of his alibi. After taking all this evidence the Magistrate, Mr. Banerjee, submitted his report to the Subdivisional Magistrate recommending that the case be dismissed and that, if thought proper, the complainant may be prosecuted for falsely implicating Nemdhari Mahto. The Subdivisional Magistrate considered the Deputy Magistrate''s report and dismissed the complaint as obviously false and filed a complaint against Mahabir u/s 211, I.P.C. An application for revision of this order dismissing Mahabir''s complaint was filed before the Additional Sessions Judge, but was dismissed by him on 1st November. The petitioner Mahabir Baitha then approached the Sessions Judge of Bhagalpur u/s 476-B, Criminal P.C., reeking to get the order for his prosecution set aside, but that application has been rejected by the Sessions Judge and he has now come up to this Court and obtained a rule.

The first point taken on his behalf is that his prosecution u/s 211, I.P.C., should not have been ordered without giving him an opportunity to substantiate his case before the Subdivisional Magistrate, and the learned advocate for the petitioner cites a number of cases regarding the matter of sanction, for instance: The Government v. Karimdad [1881] 6 Cal. 496, Queen-Empress v. Sham Lal [1887] 14 Cal. 707 (P.B.) and Mahadeo Singh v. Queen Empress [1900] 27 Cal. 921. But as Macpherson, J., his pointed out in the case of Parmanand Brahmachari v. Emperor AIR 1936 Pat. 30, the amended Criminal Procedure Code of 1923 has completely altered the law in respect of the procedure for prosecution u/s 211, I.P.C., thereby making a clean sweep of the cloud of interpreting rulings. These are clearly obsolete now and the Magistrate filing a complaint u/s 211 is no worse off than a private prosecutor, and there is no necessity that there should be any preliminary enquiry before process issues. As a matter of fact it is difficult to see in the present case that benefit such an enquiry would have been to the petitioner as he was given full and ample opportunity by the enquiring Magistrate to produce his evidence, and he did so and there was no complaint on this score. There is therefore no substance in this contention.

The second contention in this matter was that the accused should not have been allowed to appear in these proceedings and that the practice of examining the accused in preliminary enquiries u/s 202 has been repeatedly condemned by the various High Courts, for instance, two cases are cited by the learned advocate for the petitioner, namely, Bhim Lal v. Bisa Singh [1913] 40 Cal. 444 and Appa Rao Mudaliar Vs. Janakiammal, . It is quite correct to say that the High Courts have repeatedly condemned this practice, but they never have gone the length of saying that it is illegal. It is obvious that there must be cases where some preliminary enquiry in the course of which an accused''s statement is desirable must be held. For instance, in the cases of a public servant, obviously it would be unreasonable that in every case of accusation one should be liable to be dragged to Court on a summons without having an opportunity of giving an explanation as to the facts alleged against him. That would be the position if the contention of the learned advocate for the petitioner is accepted. Personally I entirely agree with the observation of Foster, J., in Ram Saran Singh Vs. Mohammad Jan Khan, , that there is no reason either in common sense or in law why the accused should not be called to the enquiry. It seems to me that what the cases cited by the learned advocate for the petitioner do really condemn is a general practice of conducting preliminary enquiries in the presence of the accused; in other words they condemn what is really a rehearsal of the subsequent trial and consequent harassment of parties and waste of public time. For instance, it used to be the practice of some Magistrates, when a complaint was filed, automatically to issue notice on the accused person to show cause why he should not be prosecuted and then there was in effect a complete rehearsal of the real trial. That is undoubtedly a procedure which is strongly to be condemned. In the Madras ruling Appa Rao Mudaliar Vs. Janakiammal, , Coutts Trotter, G.J. however clearly recognises that there may be cases where it may be desirable to allow an accused to appear and to hear what he has to say. In Re: Virbhan Bhagaji, , it is definitely laid down that there is no illegality in such a procedure. Mushahri Ram Mahuri v. Rajkishore Lal [1918] 19 Cr. L.J. 527 also recognizes the occasional necessity for this procedure and in my opinion this present case comes within the category of such occasional cases. The accused was the President of the local Union Board and therefore by this position not unlikely to make enemies. There had been several complaints against him about the bona fides of which the Magistrate was doubtful and for that reason he ordered a local enquiry. No notice was issued on the accused, but as the accused lived in the village where the local enquiry had to be made, it was natural for the Magistrate to examine him, and in my opinion he would have failed in his duty had he not done so. Nor did the accused produce his own witnesses. After his examination the Magistrate examined a number of witnesses who lived close to the house of the complainant and none of them were able to support the complainant''s case, The accused, as I indicated above, pleaded alibi, his case being that on the morning in question he was present at his official work in the Bhagalpur kutchery and he mentioned the Subdivisional Officer''s clerk and a mukhtar of Bhagalpur as his two alibi witnesses. The Magistrate examined these witnesses in the absence, it is to be noted, of both parties when he got back to Bhagalpur. In my opinion the procedure was perfectly legal. The fact that it has ended in the prosecution of the petitioner would be no justification for holding that it is illegal.

The learned advocate argues that his client has been prejudiced because the accused is an influential landlord and was in a position to dominate the local witnesses. If the petitioner really felt that the accused was in a position to destroy his evidence in a local enquiry, then he should have filed an application to the Magistrate at the time the local enquiry was ordered objecting to it. But that was never done. This allegation is now made after the enquiry is completed and per se is no ground for quashing these proceedings. The petitioner will have a chance of producing his evidence in the atmosphere of a regular trial where no such allegation can be made, and I have no doubt that the trying Court will take into consideration this aspect of the matter, namely that the allegation that the local enquiry unduly favoured the accused.

As regards the alibi evidence the learned advocate for the petitioner argues that had he been given a chance he could have shown that the accused might have committed the assault and got to Bhagalpur easily by motor car on the same day so as to create a fictitious alibi. That is a matter which the trial Court will look into also. In my opinion no ground has been made out for quashing the trial at this stage and I therefore dismiss this application. Let the record be sent down at once, and the trial proceed.