Qutubuddin and Another vs Emperor

Varma, J.—Criminal Revision No. 241 of 1936 in which the petitioner is one Qutubuddin and Criminal Revision No. 245 in which the petitioner is one Aziz Khan arise out of the same judgment and have been heard together. Qutubuddin was convicted u/s 205, I.P.C., and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 100, in default to suffer six months'' further rigorous imprisonment. Aziz Khan was convicted under Sections 199 and 205/114 and sentenced to one year''s rigorous imprisonment and to pay a fine of Rs. 50, in default, to three months'' further rigorous imprisonment under each of the two sections, the sentences to run consecutively. There was a third man, Ejaz, who was found not guilty and has been acquitted by the trial Court. On appeal the learned Sessions Judge has reduced the sentence passed on Qutubuddin to six months'' rigorous imprisonment and to a fine of Rs. 50, in default, to further rigorous-imprisonment for three months. The prosecution case has been very ably summarised by the lower appellate Court and no exception has been taken to the statement of the facts made by the Court below. It appears that one Mt. Bibi Soghra instituted a rent suit in the Munsif''s Court at Bihar against some tenants making one Muhammad Husain alias Muhammad Husi a pro forma defendant. Muhammad Husi subsequently transferred himself to the category of the plaintiff on 28th September 1933. On 30th October 1933, a joint consent decree was passed in favour of Mt. Bibi Soghra and Muhammad Husi against the tenants showing the amount payable to each of them separately besides costs. On 20th April 1934, Bibi Soghra applied for execution of her share in the decree and prayed for the issue of a notice u/s 158-B, Ben. Ten. Act, upon Muhammad Husain, the co-sharer landlord. The notice purports to have been served at Muhammad Husain''s permanent residence at Desna on 29th April 1934, not personally but on the petitioner Qutubuddin who received the notice as a servant of Muhammad Husain and signed an acknowledgment on its back on the identification of the other petitioner Aziz Khan who is a servant of Bibi Soghra.

The case for the prosecution is that Qutubuddin was really a servant of Bibi Soghra and not a servant of Muhammad Husain and in pursuance of a conspiracy the servants of Bibi Soghra got the service effected at Desna on 29th April 1934, on the false allegation that Qutubuddin was a servant of Muhammad Husain alias Muhammad Husi. It appears further that in support of this service an affidavit was sworn by petitioner Aziz Khan on 2nd May 1934, which was filed in Court on 10th May 1934. The 18th June 1934 was fixed for the sale of the judgment-debtor''s holding. On 12th June 1934, i.e., about six days before the date fixed for the sale, Muhammad Husi, it is said, accidentally heard from one Nanhku Mahto about this matter and two days later he filed a petition for execution of his share in the decree so that he might not be prevented from realising his dues out of the holding in question. On 15th June 1934, Muhammad Husain filed a petition u/s 476, Criminal P.C. before the Munsif of Bihar praying that Ejaz Husain (the decree-holder''s pleader''s clerk) and the serving peon might be prosecuted because they had acted in concert and abetment. The Munsif after the preliminary inquiry filed a complaint against Ejaz Husain, Qutubuddin and Aziz Khan under various sections and they were tried with the result stated already. The charge against petitioner Qutubuddin u/s 205 ran as follows:

That you on or about 29th April 1934, at Desna, falsely personated himself (yourself) as a servant of Muhammad Husain before Jagarnath, a civil Court process server, and in such assumed character caused a notice u/s 158-B, Ben. Ten. Act, to be served on Muhammad Husain by writing "apne malik ka nam ki notice paia" on the notice and thereby committed an offence punishable u/s 205, I.P.C.

Aziz Khan was charged under Sections 205/114, I.P.C. for having abetted Qutubuddin, and was further charged as follows u/s 199:

That you on or about 2nd May 1934, at Bihar in a declaration made by you before the Oath Commissioner made a false statement which you knew to be false touching a point material to the object for which the declaration was made, to wit, that the notice u/s 158-B, Ben. Ten. Act, had been served on Qutubuddin, a servant of Muhammad Husain, and which declaration was by law receivable as evidence and thereby committed an offence punishable u/s 199, I.P.C.

Both the petitioners as well as the person who was acquitted were further charged as follows u/s 120-B:

That you on or about 29th April 1934 at Desna caused to be done an illegal act, viz., act to get the notice u/s 158-B, Ben. Ten. Act, served on Muhammad Husain in his absence by getting it written by Qutubuddin that he was receiving the notice as a servant of Muhammad Husain and the same act, viz., the service of the notice in absence of Muhammad Husain was done in pursuance of the agreement and thereby committed an offence punishable u/s 120-B, I.P.C.

On this charge of conspiracy the trial Court found the accused not guilty. Aziz Khan pleaded not guilty to the charges framed against him and said that he did not enter into any criminal conspiracy with any accused, that he was a servant of Bibi Soghra and in such capacity identified Qutubuddin who was a servant and agent of Haji Muhammad Husain to the Court''s peon, that as Qutubuddin was a servant of Haji Muhammad Husain, no fraud was committed, that he did not swear any false affidavit, and as such, did not commit any offence in that respect, and that Ejaz did not go to Desna on 29th April 1936, as alleged by the prosecution. Qutubuddin also pleaded not guilty to the charges and said that he was never a servant of Bibi Soghra but was appointed as a tutor to teach the children of Haji Muhammad Husain and served as such till he was in Desna, when he was brought by the said Haji and kept at Bhainsasur at Bihar Sharif, that he did not know the contents of the written statement filed on his behalf in the civil Court and he suspected that the Haji was maneuvering for his own purposes, that it was under the influence and advice of the Haji that he made the statement before the Munsif as he was given hopes by the Haji that he would be let off if he made the statement that he did before the Munsif, and he further said that Haji Muhammad Husain''s lawyer argued before the Munsif that he (Qutubuddin) might be let off and made a prosecution witness. Qutubuddin also asserted that he was authorized to sign and he signed the notice in his capacity as a servant of Haji Muhammad Husain and had informed the latter of his having done so, that as Haji Muhammad Husain had no baithaka of his own, he (Qutubuddin) used to teach the children at the baithaka of Bibi Soghra; and he submitted that he had no criminal intention in signing the notice for his employer. In revision Mr. Nazrul Hasan, appearing on behalf of Qutubuddin, urges that the act ascribed to Qutubuddin is not covered by the provisions of Section 205, I.P.C. inasmuch as the petitioner signed his own name and not of anyone else, and the fact that he signed describing himself to be a servant of Haji Muhammad Husain will not in the circumstances of the case bring him within the mischief of the section. The exact expression used by the petitioner was apne malik ka nam ki notice paia" as is mentioned in the charge against him quoted above. Now, Section 205 runs as follows:

Whoever falsely personates another and in such assumed character makes any admission or statement, or confesses judgment, or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution shall be punished with....

The question, therefore, is that when Qutubuddin signed his own name and described himself as a servant of Haji Muhammad Husain, did he "falsely personate another" person? Here the person is the same and it is only the status he gives "to himself that is according to the prosecution wrong. Applying the expression "Whoever falsely personates another" to this case, and expanding it according to the prosecution story, it seems that the allegation is that Qutubuddin falsely personated Qutubuddin (himself), a servant of Muhammad Husain. In my opinion, it is not a case of personating another as mentioned in Section 205. Other cases of false personation have been dealt with in the Code under Sections 140, 170, 171, 229 and 416. The present case does not fall under any of those sections except perhaps Section 416, I.P.C. if the other ingredients of that section are proved. Section 140 deals with the case of a person who poses to be a soldier by wearing garb or carrying token used by a soldier, etc. Section 170 deals with the case of a person pretending to be or falsely personating a public servant. Section 171 speaks of the case of a person with fraudulent intent wearing the garb, etc., used by a public servant. Section 229 deals with the case of a person who allows himself to be empanelled or sworn as a juryman or assessor knowing that he is not entitled to be so empanelled or sworn. Section 416 deals with the case where a person cheats by pretending to be some other person or by knowingly substituting one person for another or by representing that he or any other person is a person other than he or such other person really is; and the explanation under this section says that the offence is committed whether the individual personated is a real or imaginary person.

The trial Court in its judgment has noted that Bibi Soghra has a baithaka and that it was not proved that Haji Muhammad Husain used his outhouse as his baithaka, In fact the learned Magistrate has referred to one festive occasion, in which Haji Muhammad Husain also joined, when the seating arrangements were made at Bibi Soghra''s baithaka; and he further remarked that there was considerable force and truth in Qutubuddin''s case that he made the admissions before the Munsif under the influence of Haji Muhammad Husain in the hope of escaping prosecution. He also referred to the Munsif''s report where it was noted that the advocate for Haji Muhammad Husain pleaded that Qutubuddin''s story was true and that he should be let off and converted into a prosecution witness in the shape of an approver. In these circumstances the allegation attempted to be proved by the prosecution that Qutubuddin'' was not a servant of Haji Muhammad Husain and that he described the Haji as his malik as the result of a conspiracy, will not bring Qutubuddin, within the mischief of Section 205, I.P.C. As regards the other petitioner Aziz Khan the facts proved do not show that his statement was responsible for the offence alleged to have been committed by Qutubuddin. Qutubuddin is a maulvi; and the original story was that it was Ejaz Husain who abetted Qutubuddin to write a false acknowledgment, which was not believed. It is not shown clearly what were the acts proved which establish that Qutubuddin was abetted by Aziz Khan as a servant of Bibi Soghra, or that Aziz knew that Qutubuddin was not a servant of Haji Muhammad Husain, or that he instigated Qutubuddin to sign the notice. The evidence on these points is not only meagre but unconvincing. The trial Court, while dealing with this charge, has said towards the end of its judgment that Aziz Khan abetted Qutubuddin to falsely personate himself as a servant of Muhammad Husain before the civil Court peon and in such assumed character caused a notice u/s 158-B, Ben, Ten. Act, to be served on Muhammad Husain by making him write the false acknowledgment and thereby he committed an offence under Sections 205/114, I.P.C. In the beginning of the judgment, of course, it has given the prosecution story. The lower appellate Court only met the argument advanced on behalf of Aziz Khan and did not come to its own findings on this point.

As regards the charge u/s 199 against Aziz Khan, it refers to the affidavit sworn by him and in it he only repeated what Qutubuddin had written, on the notice as a servant of Haji Muhammad Husain. I do not think that a repetition of that statement by Aziz Khan will have the effect of establishing that he was fraudulently swearing a false affidavit. In the result, I would allow these applications, set aside the convictions and sentences passed upon the petitioners and direct that they be set at liberty forthwith.