Bhajan Lal v. State — 1955 DIGILAW 286 (ALL)

JUDGMENT D.N. Roy, J. - This is an application in revision by Bhajan Lal praying that an order passed by the First Additional Sessions Judge of Agra on the 19th of April, 1955, directing the commitment of the applicant to the Court of Sessions for trial be quashed and the applicant be discharged. 2. A complaint was made by Rajendra Kumar Jain under Secs. 409, 465, 467, 471 and 477A of the I. P. C. against the applicant and six others. It was alleged that the complainant was a Director of the Vir Industries, Delhi, which owns the Bimal Glass Works, Firozabad that Chhadami Lal accused was previously the sole proprietor of these Glass Works; that in September, 1950, the Vir Industries proposed to purchase the Bimal Class Works for a sum of Rs. 10,50,000/-; that a sum of Rs. 1,00,000/- was paid in advance; that since the Bimal Glass Works was not in working order, it was agreed that it will be run by the accused on behalf of the Vir Industries, that the Vir Industries advanced a sum of Rs. 81,000/- for expenses, that the accused ran the Glass Works from the 1st of December, 1950, to the 1st of May, 1951, that the charge of the Bimal Glass Works was finally handed over to Vir Industries on 1st May, 1951; that during the time the accused persons ran the Factory, namely, from 1st December, 1950 to 1st May, 1951, the accused misappropriated a sum of Rs. 14,776/4/6; that Chhadami Lal Jain accused No. 1 with the help of the other accused got false accounts prepared and committed forgeries in the account-books; of the Factory and that, therefore, the accused persons were punishable under the sections stated above. 3. In support of the complaint the complainant examined a number of winesses and relied upon the entries in the books of account. The learned Magistrate found that there was a prima facie case under Secs. 409, 465, 471 and 477A against Chhadami Lal, Ram Sarup Gupta, Pyare Lal, and Lal Bihari; but there was no evidence whatsoever against Bhajan Lal, Chandrabhan and Master Sunehri Lal. He accordingly committed the first four to the Court of Sessions for trial under the sections aforesaid, and he discharged the other three accused. 409, 465, 471 and 477A against Chhadami Lal, Ram Sarup Gupta, Pyare Lal, and Lal Bihari; but there was no evidence whatsoever against Bhajan Lal, Chandrabhan and Master Sunehri Lal. He accordingly committed the first four to the Court of Sessions for trial under the sections aforesaid, and he discharged the other three accused. The learned first Additional Sessions Judge, on going through the commitment order of the case, was of the opinion that the Magistrate was not right in discharging Bhajan Lal. He observed that since the complainant had clearly stated in the complaint that Chhadami Lal in conspiracy and in collusion with the remaining accused including Bhajan Lal misappropriated a certain amount and committed certain forgeries, and since Bhajan Lal was admittedly employed in the Bimal Glass Works, the Magistrate was not right in discharging Bhajan Lal, the more so because "for a fair trial of this case Bhajan Lal should also be in the array of accused along with his master Sri Chhadami Lal." 4. After hearing learned counsel for the parties I am of the opinion that the order of the learned Additional Sessions Judge of Agra cannot be supported. The power to order commitment is contained in Sec. 437 of the Code of Criminal Procedure. That section says that when on examining the record of any case the Sessions Judge considers that such case is triable exclusively by the Court of Sessions and that an accused persons has been improperly, discharged by the inferior court, the Sessions Judge may cause him to be arrested and may thereupon, instead of ordering a fresh inquiry, order him to be committed for trial upon the matter for which he has been, in the opinion of the Sessions Judge, improperly discharged. Now in the present case the complaint that had been made in Court was under Secs. 409, 465, 467, 471 and 477A of the I P. C. The offences under these sections, except the offence under Sec. 467, I.P.C., are not exclusively triable by the Court of Sessions. Sec. 437 of the Code of Criminal Procedure would not, therefore, empower the Sessions judge to direct an order of commitment in respect of offences under Secs. 409, 465, 471 and 477A. Sec. 437 of the Code of Criminal Procedure would not, therefore, empower the Sessions judge to direct an order of commitment in respect of offences under Secs. 409, 465, 471 and 477A. The Sessions Judge could make an order of commitment in respect of the offence under Sec. 467, I. P. C, which was exclusively triable by the Court of Sessions. But that is not what the Additional Sessions Judge of Agra has done. Four of the accused were committed to the Court of Sessions by the Magistrate under the powers vested in him under Sec. 347 of the Code of Criminal Procedure for trial of offences under Secs. 409, 465, 471 and 477A of I. P. C. That commitment was not under Sec. 467, I. P. C. The learned Magistrate observed that there was no evidence whatsoever against Bhajan Lal, Chandrabhan and Sunehri Lal. He was, therefore, perfectly justified in discharging them. The learned Additional Sessions Judge in his order dated the 19th of April, 1955, has not referred to any evidence which might support him in his view that the order of discharge of Bhajan Lal was wrong, or that there was a prima facie case against Bhajan Lal under the various sections under which the complaint was made, or u/s 467, I.P.C., in respect of which offence alone the Sessions Judge was empowered to order committment u/s 437, Cr. P. C. Simply because Bhajan Lal was in the service of Chhadami Lal, it would not make him criminally liable. There must be specific evidence against Bhajan Lal before an offence under the sections under which the complaint was made could be said to have been prima facie established. I have not been able to understand what the learned Additional Sessions Judge really meant when he observed that: for a fair trial of this case Bhajan Lal should also be in the array of accused along with his master Chhadami Lal 5. The learned Sessions Judge could exercise his powers only within the scope of Section 437 of the Code of Criminal Procedure and since he exceeded those powers, the order that Bhajan Lal should be committed to the Court of Sessions was bad in law. 6. Moreover, there seems to be infringement of other provisions of the Code. The learned Sessions Judge could exercise his powers only within the scope of Section 437 of the Code of Criminal Procedure and since he exceeded those powers, the order that Bhajan Lal should be committed to the Court of Sessions was bad in law. 6. Moreover, there seems to be infringement of other provisions of the Code. Section 347 of the Code of Criminal Procedure says that if in any inquiry before a Magistrate, or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Sessions, and if he is empowered to commit for trial, he shall commit the accused. Section 347 is controlled by the provisions contained in Chapter XVIII of the Code of Criminal Procedure. A Magistrate who under that Chapter is inquiring into a case triable by a Court of Sessions, and to whom before evidence is led by the accused as required by Section 208, Cr.P.C. (which falls under Chapter XVIII of the Code) i(sic) appears that the case is one which ought to be tried by the Court of Sessions, the Magistrate is not empowered u/s 347 of the Code to commit the accused for such trial without taking the evidence of the accused referred to in Section 208. This view has the support of a decision of a Full Bench of this Court in Emperor v. Asghar 1935 A. W. R. (H.C.) 1490 7. In Queen-Empress v. Ahmadi I. L. R. 20 All. 264 a learned Judge of this Court held that a Magistrate inquiring into a case under Chapter XVIII of the Code of Criminal Procedure is not empowered to frame a charge or make out an order for commitment until and after he has taken all such evidence as the accused may produce before him for hearing. That view was followed by a Division Bench of this Court in Emperor v. Mohammad Hadi I. L. R. 26 All. 177 and again in a later decision in Jaswant Singh v. Emperor A. I. R. 1924 All. 317. A similar view was taken in Mohan Lal v. King-Emperor A. I. R 1924 All. That view was followed by a Division Bench of this Court in Emperor v. Mohammad Hadi I. L. R. 26 All. 177 and again in a later decision in Jaswant Singh v. Emperor A. I. R. 1924 All. 317. A similar view was taken in Mohan Lal v. King-Emperor A. I. R 1924 All. 665 where it was observed that the procedure in not taking all the evidence that the parties intended to produce before the order of commitment was entirely illegal and was likely to prejudice the accused, and that the order of commitment could not therefore stand. The decision in Mohan Lal v. Emperor A. I. R 1924 All. 6659 :40 AM 12/17/2011 : A. I. R 1924 All. 665 came to be considered by another learned Judge of this Court in Ram Ghulam v. Emperor AIR 1931 All. 431 where a distinction was tried to be drawn and it was held that the procedure was not illegal; that the accused had no right of further cross-examination upon the amended charge; and that after the commitment the proceedings must be deemed to be in an inquiry under Chapter XVIII and not in a trial, and further examination and cross-examination could me made in the Court of Sessions. The decision in Ram Ghulam v. Emperor A. I. R. 1931 All. 431 does not appear to be in consonance with the view of this Court in the earlier decisions by the Full Bench and by the Division Bench referred to above. 8. In the present case Bhajan Lal was not called upon to produce the evidence on which he intended to rely. Consequently the order directing commitment of Bhajan Lal to the Court of Sessions was not in accordance with law. Under the circumstances the order dated 19th April, 1955, passed by the learned First Additional Sessions Judge of Agra is quashed and the order of discharge of Bhajan Lal passed by the Magistrate on the 30th of September, 1954, is restored. The order of stay is withdrawn. 9. It has been contended on behalf of the complainant that this Court, acting under the provisions of Section 436 of the Code of Criminal Procedure, should direct further inquiry into the case of Bhajan Lal who has been discharged. The order of stay is withdrawn. 9. It has been contended on behalf of the complainant that this Court, acting under the provisions of Section 436 of the Code of Criminal Procedure, should direct further inquiry into the case of Bhajan Lal who has been discharged. The power u/s 436 of the Code should be used sparingly, especially in a case where the question involved is a question of fact. In the application of this rule of caution, various tests have been laid down by the Courts, one of which is that an order passed after hearing of the evidence produced by the prosecution should not be lightly interfered with, unless it can be said that it is perverse or manifestly wrong or unreasonable. Further inquiry should not be ordered on the bare possibility of an offence being disclosed on further evidence. There must be something on the record to indicate that such an offence has been committed, or there must be something to show that further evidence is available on behalf of the prosecution which would support a charge for such offence. These elements having been lacking, it would not be proper for this Court to direct a further inquiry against Bhajan Lal under the provisions of Section 436 of the Code. 10. Leave to appeal is refused.