Raghunandan Prasad Ram Prasad vs State of Vindhya Pradesh

Jagat Narayan, J.C.

This is a revision application by one Raghunandan Prasad who was convicted under S. 465, I. P. C. by the Additional Munsiff Magistrate Umaria. The conviction was confirmed by the Additional Sessions Judge, Rewa. I have heard the Learned Counsel for the applicant and the learned Government Advocate and have perused the evidence on record.

Raghunandan Prasad was the ''munim'' of the firm Puranmal Jagat Narain of which Furanmal was one of the owners. A suit for the recovery of Rs. 15,236/- was instituted on 28-3-1950 against the owners of that firm by the owner of the firm Dhanraj Ramji Das on the basis of ''purzi'' Ex. P. 2 which was filed along with the plaint. A written statement was filed on behalf of Puranmal and others on 18-7-1950. The District Judge of Umaria who tried that case discovered that some additions and alterations were made in the ''purzi'' between 28-3-1950 and 18-7-1950 by Raghunandan Prasad. He filed a criminal complaint under Ss. 465 and 471, I. P. C. against Puranmal and Raghunandan Prasad who were prosecuted in the Court of the Additional Mufsiff Magistrate Burhar. Both the accused persons pleaded not guilty. Puranmal maintained that the additions and alterations were not made after the ''purzi'' had been filed in Court. Raghunandan Prasad however admitted that he made the additions and alterations about which charges were framed against him when the suit was pending in the Court of District Judge Umaria. Subsequently Raghunandan filed a written statement resiling from the earlier statement he had made in Court. It was alleged by him that he made the earlier statement under the influence of the plaintiff of the civil suit. The learned Additional Munsiff Magistrate however held that Raghunandan Prasad had made the additions and alterations after the ''purzi'' had been filed in Court and convicted him under Ss. 465 and 471, I. P. C. He sentenced him to undergo R. I. for 2 years and to pay a fine of Rs. 50/- or in default to undergo further R. I. for 2 months. Puranmal was acquitted. On appeal the learned Additional Sessions Judge set aside the conviction under S. 471, I. P. C. and reduced the sentence under S. 465, I. P. C. to R. I. for one year and a fine of Rs. 50/-. In default of payment of fine Raghunandan Prasad was to undergo further R. I. for 2 months. The present application has been filed against this order.

First it was contended that the conviction of the applicant was based on his statement in Court. This is not correct. The conviction is based on the evidence of the prosecution witnesses. The learned Additional Sessions Judge has specifically referred to the evidence of Shiva Prasad P. W. in this connection who stated that he saw the applicant committing forgery with his own eyes. He believed this allegation in view of the fact that the applicant himself admitted it in his statement in Court. It was not disputed even in the subsequent written statement filed by the applicant that the additions and alterations were made by him. Only the time of making them was disputed. Shri Hanuman Prasad Advocate and Ramji Dass, plaintiff of the civil suit, both stated that the additions and alterations were not on the ''purzi'' when it was filed along with the plaint. I accordingly find that there is sufficient evidence against the applicant and his conviction on the charge of forgery is proper.

Next it was contended that the facts proved against him disclosed an offence under S. 466, I. P. C. which is exclusively triable by the Court of Session and his conviction by the Additional Munsiff Magistrate under S. 465, I. P. C. is one without jurisdiction and is void under S. 530, Criminal P. C. From the cases which were cited before me it appears that the true legal position is that where the facts disclose an offence which the Magistrate has jurisdiction to try the mere fact that the same facts disclose a more serious offence beyond the Magistrate''s competence to try will not render his proceedings void if the Magistrate tried the offender only for the offence which he was competent to try. in such a case the procedure adopted by the Magistrate might be improper and if, in consequence, there has been a failure of justice the proceedings might be set aside and a retrial directed for the greater offence. But whether it will do so or not is a question, not of law, but of expediency depending on the facts and circumstances of a particular case.

In ''King Emperor v. Ayyan'', 24 Mad 675 (A), certain witnesses committed perjury in" a murder, cask. They were tried and convicted by a Magistrate under S. 193, I. P. C. On appeal the Sessions Judge held that inasmuch as the false statements had been made in connection with a charge of murder the offence for which, the accused should have been tried fell under S. 194, I. P. C. and that in consequence they can be tried only by a Court of Session and not by a Magistrate of the First Class. He considered their trial to be void under S. 530, Criminal P. C. It was held that the order was wrong as the proceedings before the First Class Magistrate were not void within the meaning of S. 530, Cr. P. C. It was observed:

The Sessions Judge relies on section 530(p) of the Criminal Procedure Code. It runs: "If any Magistrate not being empowered by law in this behalf tries an offender his proceedings shall be void." The meaning of this is that if a Magistrate tries an offender for an offence beyond his jurisdiction his proceedings shall be void. In the present case the Deputy Magistrate did not try accused for an offence beyond his jurisdiction. He tried him for an offence punishable u/s 193, Indian Penal Code, i. e. for an offence triable by a First Class Magistrate and therefore within his jurisdiction. His proceedings therefore were not void and the Sessions Judge was wrong in treating them as void. Where the facts disclose an offence within the jurisdiction of the Magistrate it seems to us a complete fallacy to say he is not empowered by law to try the person charged for the offence which is within his jurisdiction, because the same facts disclose more serious offence which is beyond his jurisdiction. He is expressly so empowered.

The view taken by their Lordships in the above case was in accordance with the view taken by the Bombay High Court in - ''Queen Empress, v. Gundya'', 13 Bom 502 (B). The accused were charged before a Second Class Magistrate under Ss. 149 and 325, I. P. C. The evidence showed that one of the accused had used an axe in causing the hurt. The Magistrate ignored this fact and convicted the accused u/s 325 I. P. C. The Sessions Judge on examining the record of the case was of opinion that as the offence committed by the accused was one under S. 326, I. P. C. which was not cognisable by the trying Magistrate his proceedings were void under S. 530, Criminal P. C. He therefore referred the case to tile High Court and recommended that the conviction u/s 325 should be set aside. It was held that the proceedings before the second Class Magistrate were not void as he had Jurisdiction to try the accused for offences punishable under sections 149 and 325 I. P. C. with which they were charged.

The above cases were followed in - ''Dowson v. Emperor''. 1925 Rang. 45 (AIR V 12) (C), and - ''In re Alfred Paul'', 1944 Mad 166 (AIR V 31) (D). ''In re Madurai'', 12 Mad 54 (E), was not correctly decided. In that case reliance was placed on a ruling reported on page 701 of Weir''s Criminal Rulings. The ruling has been referred to in 24 Mad 675 (678) (A). It seems that the High Court did not mean that the trial by the Magistrate for the lesser offence was void. In any event the decision in ''12 Madras 54 (E)'', should be considered to have been overruled by the subsequent decision of the same High Court reported in '' 24 Mad 675 (A)''.

In ''Sanmukhsingh v. Emperor'', 1945 Sind 125 (AIR V 32) (F), the accused were tried and convicted u/s 468,'' I. P. C. by a Magistrate. They appealed to the Sessions Judge who found that the facts disclosed an offence under S. 467, I. P. C. which is triable exclusively by the Court of Session. Acting under the provisions of S. 423, Criminal P. C. he set aside the conviction and ordered their commitment. Against this order the applicants went up in revision and their application was dismissed. It was not held that their trial by the Magistrate under S. 468, I. P. C. was void. The point for consideration was whether a conviction recorded by a competent Magistrate under S. 468, I. P. C. could be properly set aside in appeal if the forged document was prima facie a valuable security.

In "Mansharam Gianchand v. Emperor'', 1941 Sind 36 (AIR V 28) (G), a Sub-Inspector of Police was tried and convicted by a Magistrate of offences of wrongful confinement and extortion under Ss. 384, 385 and 347, I. P. C. On appeal it was argued on his behalf that so far as the charge of wrongful confinement was concerned the appropriate section was not section 347 but it was section 220, I. P. C. which is triable exclusively by the Court of Session. The High Court acting u/s 423(1) (b), Criminal P. C. set aside the conviction and committed the accused for trial to the Court of Session. The Public Prosecutor appearing for the Crown agreed that the case should be so committed. It was observed:

It is a matter merely of personal opinion, and I may be wrong, but where serious offences, such as are alleged in this case against the Sub-Inspector, are to be tried, it appears to me that it is desirable from all points of view, from the point of view of the public, from the point of view of the police force, from the point of view of the officer concerned, from the point of view of justice, that these most serious cases, and they are most serious cases, should, so far as the law permits, be committed to the Court of Session even if a first class Magistrate had power to try them for it appears to me that for an offence of this nature even though it involves the loss of appointment, and of pension, a sentence of five years'' rigorous imprisonment in the case of one man would be far more effective than six months or a year in the case of more than one, in the cases, say of five or six Sub-Inspectors, who might be convicted and sentenced to six months'' imprisonment each. Corrupt men in the office of Sub-Inspector may still think it worth the risk, if the penalty is only six months'' imprisonment, ''but they would not think it worth the risk if they saw before them on detection for such an offence a sentence of five years'' rigorous imprisonment.

This case also cannot be regarded as an authority for the proposition that the trial of the Sub-Inspector by the Magistrate for the lesser offence was void under S. 530, Criminal P. C. In ''Netai Chandra v. Emperor'', 1936 Cal 529 (AIR V 23) (H), the accused persons were tried under the special procedure prescribed in the Bengal Suppression of Terrorists Outrages Act. They were originally charged u/s 396 I. P. C. The Bengal Suppression of Terrorists Outrages Act, 1932 provided that a person could be tried under the special procedure only if there was reasonable ground for believing that any person, had committed a scheduled offence not punishable with death. It was held that the trial of the accused under the special procedure was illegal. This case is of no help as there is no corresponding provision in the Code of Criminal Procedure laying down that a Magistrate cannot try a case if there are reasonable grounds for believing that any of the accused persons has committed an offence triable by a Court of Session in the course of the same transaction.

In - ''Raghunandan Prasad v. Emperor'', 1925 All 290 (AIR V 12) (I), it was held that the forum for the trial of a case is determined by the allegations made in the complaint. With all respect I am unable to agree with this decision. Jurisdiction is a mixed question of law and fact. It is to be determined by facts which are ultimately found to be true. In - ''Mahajanam Venkatrayar v. Kodi Venkatrayar'', 1922 Madt 223 (AIR V 9) (J), where the complaint was in respect of an offence under S. 467, I. P. C. triable by the Court of Session but the Magistrate tried it as coming under S. 463, IPC and finding the complaint frivolous made an order for compensation it was held that the Magistrate was not proceeding illegally in trying the accused for the lesser offence and was not acting illegally in awarding compensation when he found the accusation frivolous or vexatious.

I accordingly find that the trial of the applicant under S. 465, I. P. C. by the Magistrate was not void under s. 530, Criminal P. C.

Next it was argued that prejudice was caused to the applicant by his being tried by the Magistrate under S. 465, I. P. C. instead of being tried by the Sessions Judge under S. 466, I. P. C. with the aid of assessors. - ''Magga v. State of Rajasthan'', 1953 S.C. 174 (AIR V 40) (K), was referred to in which it was observed in para 10:

The provision in S. 309 of the Code that the opinions of the assessors are not binding on the Sessions Judge cannot lend support to the contention that the Sessions Judge is entitled to ignore their very existence. Though he may not be bound to accept their opinions, he is certainly bound to take them into consideration. The weight to be attached to such opinions may well vary with the number of assessors.

In that case out of 4 assessors 2 absented themselves on some dates of hearing one of whom was substituted by another and the other was reinstated. The High Court of Rajasthan were of the view that the presence of these two assessors at the trial could be ignored altogether. Their Lordships expressed their disagreement with this view and made the above observation in that connection.

The basis of decision in that case however was that the trial was conducted in a manner different from that prescribed by the Code and was therefore bad and no question of curing any irregularity arose. It cannot be inferred from the observations made by their Lordships that a trial with the aid of assessors is more advantageous to the accused than one without the aid of assessors. Under the amended Code of Criminal Procedure the institution of assessors has been abolished altogether.

The facts given in the complaint filed against the applicant by the District Judge disclose an offence under S. 466. I. P. C. When a charge under S. 465, I. P. C. was framed against him he did not raise any objection that he should be committed to stand his trial before the Court of Session under S. 466, I. P. C. It was only when the entire prosecution and defence evidence had been recorded and the case was being argued that he raised an objection that he should have been committed to the Court of Session. The learned Magistrate was under the impression that only an offence under S. 465, I. P. C. was made out.

The applicant has been adequately punished. In fact, the Magistrate had sentenced him to undergo R. I. for 2 years, but the Additional Sessions Judge considered that sentence to be exces�sive and reduced it to R. I. for one year. I do not consider it proper to set aside the conviction of the applicant under S. 465, I. P. C. and order his commitment to stand his trial under S. 466, I. P. C. so that he may have the dubious advantage of being tried with the aid of assessors.

Lastly it was argued that from the statement made by the applicant it is clear that he acted under the influence of his employer in committing the offence. Even after taking this fact into consideration I do not consider the sentence of R. I. for one year imposed upon the applicant to be excessive in the circumstances of the case. I accordingly reject the application.