Mohammad Yasin vs King-Emperor

Kulwant Sahay, J.—On the 25th October 1923, the petitioner, Sheikh Mohammad Yasin, lodged an information before the police charging Abdul Wahid and others with offences under Sections 148 and 302 I.P.C., his case being that the said accused persons had committed rioting armed with deadly weapons, causing the death of Mohammad Jan, the father of the petitioner.

The police held an investigation, but before they had submitted their report on the 5th of November 1923, the petitioner filed a petition before the Magistrate complaining against the police investigation and praying that the case should be enquired into, and the persons accused by him should be summoned. Thereafter the police submitted their final report to the effect that the case was intentionally false, and they applied for the prosecution of the petitioner u/s 211, I.P.C. Notice was issued upon the petitioner to show cause why he should not be prosecuted for instituting a false case. The petitioner filed a petition showing cause in which he asserted that the case was a true one.

The Magistrate, however, ordered that the petitioner Yasin should be summoned u/s 211 on the basis of the complaint put in by the Sub-Inspector of Police, and he directed that further proceedings in the case which was started on the information of Yasin before the police should be terminated, and that the order to show cause to be served upon Yasin should be cancelled.

Yasin thereupon moved the Sessions Judge who made a reference to this Court (Cr. Reference No. 27 of 1924) which was heard by Adami, J., on the 14th May 1324. Adami, J., held that the petition of Yasin showing cause impugned the enquiry by the police and amounted to a complaint. The Magistrate should have examined Yasin on oath as a complainant, and either called upon him to prove his case or should have dismissed his complaint u/s 203, Criminal P.C. He did neither of these. Mr. Justice Adami held that, although it would have been proper to dispose of the complaint of Yasin in the first instance, and then entertain the complaint against him u/s 211, yet as the complaint had been made, he directed the proceedings upon the complaint of the Inspector u/s 211 to proceed. Yasin was accordingly committed to the Sessions on a charge u/s 211 and convicted by the Assistant Sessions Judge of Muzaffarpur and sentenced to five years'' rigorous imprisonment. Against this conviction, Yasin preferred an appeal to this Court which was heard by Bucknill and Boss, JJ., and their Lordships'' judgment is reported in Shaikh Muhammad Yassin Vs. Emperor, . Their Lordships in that case held that the petition of Yasin filed on the 5th of November 1923, must be treated as a complaint before the Magistrate, and that the offence, if any, committed by the petitioner was an offence which was committed in or in relation to a proceeding in Court and, consequently, a complaint in writing by the Court or by some other Court to which it was subordinate was a condition precedent to cognizance being taken of the offence u/s 211. They held that by making the complaint to Court, the informant, viz., the present petitioner, had withdrawn the information from the category of mere police proceedings and had raised it to the category of a proceedings in Court. This necessitated a complaint by the Court if the informant was to be proceeded against. Their Lordships were of opinion, therefore, that the proceedings in which the petitioner had been convicted were wholly without jurisdiction because the bar imposed by Section 195 of the Criminal P.C., had not been removed, and they directed that the conviction be set aside.

This decision of the High Court is dated the 19th December 1924, thereafter, on the 24th of January 1925, the Police Inspector made an application before the Sadr Sub-divisional Magistrate of Muzaffarpur praying that the petitioner might be re-tried u/s 211 I.P.C., in relation to the same offence, after a complaint u/s 476, Criminal P.C. Notice was issued on the petitioner to show cause why proceedings should not be taken against him u/s 211 I.P.C., and on the 26th February 1925, the petitioner filed a petition of objection before the Magistrate in which he contended inter alia that the petitioner could not be tried again upon the same facts upon which he had been tried before. The Magistrate, however, examined the petitioner on oath in connexion with his original petition of the 5th of November 1923. The petitioner examined witnesses in support of his allegation; but on the 21st of April 1925, the Magistrate found his original complaint to be intentionally false, and eventually on 14th August 1925, he made a formal complaint against the petitioner u/s 476, Criminal P.C. The said complaint was made over to another Magistrate of the 1st class who committed the petitioner to the Court of Sessions for an offence u/s 211 by his order dated the 21st October 1925.

The petitioner has come up in revision to this Court against this order; and the main ground taken by the learned Counsel on his behalf is that the petitioner, having once been tried and acquitted by a Court of competent jurisdiction, is not liable to be tried again for the same offence. Reliance has been placed on Sub-section 1 of Section 403 of the Criminal P.C. It has also been contended that the present proceedings were started against the petitioner before his original complaint had been disposed of and he was called upon to show cause in the present proceedings before the truth or otherwise of his complaint made on the 5th of November 1923, was enquired into.

The first question depends on the construction of the judgment of this Court in the appeal preferred by the petitioner against his conviction by the Assistant Sessions Judge reported in Shaikh Muhammad Yassin Vs. Emperor, . As I have already observed, the conviction was set aside by this Court on the ground that the proceedings were ab initio void and without jurisdiction on account of the bar imposed by Section 195 of the Criminal P.C. not having been removed. Section 403(1) of the Criminal P.C., provides that

a parson who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, be not liable to he tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made u/s 236. or for which he might have been convicted u/s 237.

The question is whether the judgment of this Court in the appeal from the previous trial was an acquittal of the petitioner after his trial by a Court of competent jurisdiction as is contended for by the learned Counsel for the petitioner. In my opinion, the first trial of the petitioner cannot be said to be a trial by a Court of competent jurisdiction so as to bar a second trial. It has been contended that the Court which tried the petitioner on the first occasion was a Court of competent jurisdiction within the meaning of the section, and the conviction was set aside on a point of law which did not affect the jurisdiction of the Court which held the trial; and reliance was placed upon a decision of the Madras High Court in re. K. Ganapathi Bhatta v. Emperor (2). This decision to a certain extent lends support to the contention of the learned Counsel; but in my view the learned Judges put a too narrow construction upon the provisions of Section 403(1) of the Code.

They observed that Sub-section (1) of Section 403 refers to the character and status of the tribunal when it refers to competency to try the offence. The reasoning adopted in that case was that a sanction u/s 195, Criminal P.C. was not a condition of the competency of the tribunal, but it was only a condition precedent for the institution of proceedings before the tribunal, and that the want of sanction u/s 195 did not in any way affect the jurisdiction of the Court to try the accused of the offence charged. In my view the wording of Section 403 is very wide and the jurisdiction of the Court does not merely refer to the character and status of the Court to try the offence, but also refers to want of jurisdiction on other grounds as shown by illustrations (f) and (g) to the section. I think it covers cases where the trial is held to be without jurisdiction for want of sanction u/s 195, of the Code. This view was taken by the Allahabad High Court in Hussain Khan v. Emperor [1917] 39 All 293. In that case the accused persons were tried for an offence u/s 82 of the Indian Registration Act without the permission required by Section 83 of the Act having been obtained. They were convicted by the Magistrate, but the conviction was set aside by the High Court on the ground of want of permission u/s 83 of the Act. A second trial was held after obtaining the permission u/s 83 and the accused persons were again convicted. It was held by Knox, J., that the second trial was not barred by Section 403 of the Criminal P.C., it being held that the Court which had tried the case in the first instance was not a Court of competent jurisdiction to hold the trial owing to the absence of the sanction u/s 83 of the Act. The same view was taken in Nanakram v. Emperor [1918] 46 I.C. 716: a similar view was taken in Rex v. Marsham [1912] 2 K.B. 362, in Peter Bradshaw v. John Drury 18 L.J.M.C. 189 by the Calcutta High Court in Queen v. Muthoorapershad Panday [1865] 2 W.R. Cr. 10.

It is further to be observed that this Court did not make an order of acquittal upon the appeal in the previous conviction but merely directed that the conviction should be set aside. There was no trial of the accused on the merits by this Court, and the conviction was set aside on the ground of want of jurisdiction in the Court to try the petitioner, I am, therefore, of opinion that Section 403(1) does not operate as a bar to the second trial of the petitioner in the present case.

The second ground taken was that the proceedings were initiated against the petitioner before the disposal of his original complaint of the 5th of November, 1923. In my opinion there is no substance in this objection either. This Court did not direct an enquiry into the complaint of the petitioner Yasin. As a matter of fact, the Magistrate did examine the petitioner and dismiss his complaint although after the initiation of the enquiry; but the dismissal was before the making of the complaint u/s 476. The commitment of the petitioner, therefore, to the Court of Sessions cannot be quashed.

It has been contended on behalf of the petitioner that the matter is too stale and that the petitioner has already been sufficiently harassed, and a fresh prosecution of the petitioner for the same offence should not be allowed to proceed. It is no doubt true that the complaint was made by the petitioner so long ago as November 1923, and he has been subjected to a good deal of harassment on account of the previous prosecution, and it is for the Crown to consider whether the case is a fit one in which the proceedings should be allowed to go on, or whether it is proper to drop the proceedings. It is not competent for us to quash the proceedings on the ground that the original complaint made by the petitioner was more than two years ago.

In the result this application must be dismissed.

Ross, J.

I agree.