Ramdeni Pathak and Another vs Emperor

Fazl Ali, J.—In my opinion the rule issued in these two cases by my brother James must be made absolute. Before dealing with the merits of the case, I wish to produce a passage from the able judgment of the learned trying Magistrate which sets out the circumstances under which the prosecution of the two petitioners originated. The passage runs as follows:

In the trial before Mr. A. Singh, Deputy Magistrate, Dhanukdhari Missir and others were charged for theft and for being members of an unlawful assembly.... Mr. A Singh acquitted the accused in that case his finding being that the case instituted by Mohammad Isa was maliciously false and all the witnesses had lied. A petition was subsequently filed by Dhanukdhari Missir before Mr. A. Singh for the prosecution of the witnesses for giving false evidence. He rejected this petition and refused to take action. The Superintendent of Police, Champaran, and the District Magistrate then carried on a correspondence regarding the matter (this does not form part of the record but it is necessary to refer to this in order to explain the sequence of events) and ultimately the District Magistrate directed the trying Magistrate to institute proceedings against Mohammad Isa and the persons whom he found had given false evidence before him at the original trial. Mr. A. Singh went Into the matter, again and he drew up the charges which form the subject matter of this case against Ramdeni and made a complaint in writing to the S.D.O. Sadar, etc. etc.

It appears that on 18th July 1936, Mohammad Isa had lodged an information at the police station, Madhubani, charging Dhanukdbari Missir and certain other persons with having formed an unlawful assembly and removed the materials of his hut and certain other articles from a piece of land belonging to him with a view to dispossess him from it The case was investigated by the Sub-Inspector in charge of the police station under the supervision of the Divisional Inspector and the allegations of Mohammad Isa being found to be true a charge sheet was submitted against Dhanukdhari Missir and others. These persons were however acquitted by the trying Magistrate on 17th September 1936. The learned Magistrate was then moved by Dhanukdhari Missir to prosecute Mohammad Isa and his witnesses including petitioners under Sections 211 and 193, Penal Code, respectively but he declined to do so by his order dated 12th October 1933. Subsequently the District Magistrate intervened in the matter as stated in the passage quoted above, and the trying Magistrate accordingly preferred a complaint against Mohammad Isa as well as the petitioners. Mohammad Isa has since been acquitted of the charge u/s 211, but the petitioners have been convicted of the offence u/s 193, Penal Code and sentenced to undergo rigorous imprisonment for two months each.

It may be stated that the petitioner Sheosaran Chaudhuri was charged in respect of three statements and the petitioner Ramdeni Pathak in respect of two. The only statement however in respect of which these petitioners have been convicted relate to certain weapons said to have been carried by the persons accused in Isa''s case. The finding of the Courts below briefly is that whereas the petitioners had not stated before the police that the persons named by them as accused in Isa''s case carried any weapons such as bhalas, ganrasas, etc., they falsely stated before the trying Magistrate that they had made such a statement before the police.

Now there can be no doubt that the manner in which the prosecution of the petitioners was started was highly irregular, because once an order had been passed by the Magistrate declining to take action in the case, that order could have been displaced only by the order of the Appellate Court (the Sessions Judge in this case) u/s 476-B, Criminal P.C. The District Magistrate had no power to direct the prosecution of Mohammad Isa or the petitioners, and if the Magistrate in making the complaint in this case allowed himself to be guided by the wishes of a superior executive officer acting in that capacity, he manifestly acted improperly and contrary to law. The proceedings against the petitioners were thus liable to be quashed, if suitable action had been taken at an earlier stage on their behalf. The trial, however, having proceeded and the petitioners having been found guilty, it becomes necessary to deal with the merits of the case.

Now, in a prosecution u/s 193, it is incumbent on the prosecution to show first that the statement made by the accused was false and secondly that they knew it or believed it to be false or did not believe it to be true at the time they made the statement. In my opinion it is difficult to say on the record as it stands that the prosecution has discharged the onus fully and properly with regard to either of these matters. This is not a case in which the statements which have been found to be false are in direct conflict with any statements made by the petitioners before the police. The statements made by them are said to be false, because there is no record of any corresponding statement in the police diary. It is however conceded in the judgments of the trying Magistrate as well as the Appellate Court that the investigating police officer did not record the statements of the petitioners in extenso but recorded only a gist of them.

The learned trying Magistrate has also quoted certain observations from the judgment of the Sessions Judge of Muzaffarpur in another case where the learned Judge had observed that

omissions must naturally be made in case diaries and the possibilities of error regarding the statement of witnesses are also considerable.

Both the Courts below have also stated in their judgments that the police officers who deposed in this case had no independent memory of the statements made to them by the petitioners but merely relied on the diary and upon the fact that important statements are as a matter of practice seldom left out of the diary. In such circumstances this being dearly a case of oath against oath, it would in my opinion be highly unsafe to convict the accused upon the statement of only the police officers. Besides, the responsibility of the prosecution does not end merely with the proof of the fact that the statement is incorrect, but, as I have already stated, it is incumbent on it to prove that the accused deliberately made a false statement. Now one of the charges against these accused persons was that they had implicated certain persons before the trying Magistrate who had not been named by them before the police.

The learned Additional Sessions Judge has however set aside their conviction on that charge on the ground that the statements before Mr. A. Singh were made by the accused nearly one year after they had made their statements before the police and it was possible for them to have been under the impression that they had named certain persons before the police when as a matter of fact they had not done so. In my opinion, the same reasoning will apply to a statement made by the petitioner with regard to the weapons. It has been suggested that there was a conspiracy on behalf of the complainant and his witnesses to magnify the case against Dhanukdhari Missir and his party and so they deliberately introduced allegations with regard to the possession of weapons by the latter in the Court of the Magistrate, though they had not made any reference to it before the police. This is after all mere speculation and it loses much of its force by reason of the fact that Mohammad Isa who was prosecuted u/s 211 has been acquitted.

Besides, the case brought by Mohammad Isa was even without the introduction of the weapons a fairly serious one inasmuch as if his allegations were true, the persons accused by him had not only assembled with an unlawful common object, but had removed his hut with a certain quantity of grain and also carried off certain other articles.

In my opinion, upon the materials on the record, it would be entirely unsafe to uphold the conviction of the accused persons and the learned Advocate General who appeared for the Crown being of the same view frankly stated that he could not support the conviction.

The applications are therefore allowed and the conviction of the petitioners and the sentences passed against them are Bet aside.