Renupada Dutta v. State — 1962 DIGILAW 183 (CAL)

ORDER These two revisional petitions are directed against the order of the learned Additional District Magistrate, Midnapore, setting aside the order of a Magistrate discharging the accused persons in an enquiry under Chapter XVIII of the Code of Criminal Procedure, and directing the learned Magistrate to commit the accused persons to the Court of Session. 2. The complainant's case is that Surendra Kamilya, Usendra Kamilya and Jogendra Kamilya were three brothers, that accused petitioners Ram Chandra Kamilya, Lakshman Chandra Kamilya, Satrughna Kamifya and Santosh Kamifya are the sons of late Upendra Kamilya, that accused petitioners Purna Chandra Kamilya, Pulin Kamilya, Nalini Kamilya and Anil Kamilya are the sons of late Jogendra Kamilya and that the complainant Kaiyayani Kamilya is the widow of Surendra Kamilya. Surendra has get no son; his three daughters named Jahnabi, Basanti and Joyanti are married; he died on the 4th May, 1960. On the night of the 18th Baishakh, 1367 B.S., corresponding to the 1st May, 1960, he was carried by the aforementioned accused persons on their arms to their house when his condition became serious the had been suffering for come time past from tuberculosis. He died in the house of those accused persons on the 21st Baishakh, 1367 B.S. corresponding to the 4th May 1960. The prosecution case is that Surendra Kamitya was taken to the house of the accused persons for the purpose of causing him to execute a deed of conveyance in respect of certain landed properties and that the accused persons got a false document executed by him. Sometime thereafter on the above-named widow's suspicion being roused she asked her eldest son-in-law to make enquiries and then came to learn that the accused persons made Surendra execute a false document although he was then in an unconscious condition. The document was caused to be executed on the 3rd May, 1960, corresponding to the 20th Baishakh, 1367 B.S. and it was registered on the same day. 3. Accused petitioner No. 9 Narendra Jana is the scribe of the impugned document and accused petitioner Rajani Kanta Patra is the attesting witness to the document. The above mentioned accused persons are the petitioners in Revision Case No. 835 of 1961. 3. Accused petitioner No. 9 Narendra Jana is the scribe of the impugned document and accused petitioner Rajani Kanta Patra is the attesting witness to the document. The above mentioned accused persons are the petitioners in Revision Case No. 835 of 1961. In the other Revisional case, namely, case No. 834 of 1961 Renupada Dutta who is a clerk in the office of the Sub-Registrar and who was sent by the Sub-Registrar for the purpose of having the document registered on commission is the petitioner. 4. The defence case is one of complete denial. The case of accused Narendra Jana, Renupada Datta and Rajani Kanta Patra is that they are not guilty. The case of the other accused petitioners, namely, the nephews of Surendra is that Surendra suffered from Tuberculosis for about two years and died on the 4th May, 1960, at about 3 O'clock in the morning at the house of his nephew Puma where he was staying from the end of the month of Falgaon or the beginning of Chaitra, 1366 B.S. as he was not being properly looked after in his own house. The nephews made arrangements for his treatment and looked after him. Her was treated by one Dr. Annada Charan Das, Medical Officer of the Charitable dispensary at Balishai. Petitioner Puma who is a 'Kaviraj' also looked after Surendra. Being satisfied with the nursing of the nephews and with the arrangements made by them for his treatment he executed a deed of gift in respect of a portion of his 'bastu' in favour of the abovementioned eight petitioners (nephews), the area of the property being about 1.70 acres. On the same day Surendra executed another deed of gift in favour of one Radha Shyam Das as the shebait of the deity of Kanchaneshwar Mahadeb Jeu. As Surendra was very weak and as his hands were trembling at the time of execution of the document he could not sign and, therefore, put his thumb impression on the impugned document which was voluntarily executed by him. 5. The prosecution examined 11 witnesses while the defence examined 3 witnesses. After considering the evidence of the witnesses the learned Magistrate came to the conclusion that the prosecution witnesses were not trustworthy, that they could not be relied upon and also that there were not sufficient grounds for committing the accused persons to the Court of Session. 5. The prosecution examined 11 witnesses while the defence examined 3 witnesses. After considering the evidence of the witnesses the learned Magistrate came to the conclusion that the prosecution witnesses were not trustworthy, that they could not be relied upon and also that there were not sufficient grounds for committing the accused persons to the Court of Session. In that view of the matter the learned Magistrate discharged all the accused persons under Section 209 of the Code of Criminal Procedure. There was an application before the learned Additional District Magistrate, Midnapore, under Sec. 435 of the Code of Criminal Procedure. The learned Additional District Magistrate set aside the order of discharge made by the learned Magistrate and directed the Magistrate to commit the accused persons to the Court of Session. He did not frame the charge under which the accused were to be tried nor did he indicate in his order under what section the accused were to be committed. 6. Mr. Dutt appearing on behalf of the accused-petitioners has raised the following contentions : First, the learned Additional District Magistrate was under a misconception about his functions under Sec. 437 of the Code of Criminal Procedure and also of the functions of the committing Magistrate under Chapter XVIII of the Code; the Additional District Magistrate could only interfere if he came to the conclusion that the Magistrate had committed a material error in discharging the accused or had illegally or improperly underrated the value of the evidence; secondly, the learned Additional District Magistrate in exercising his powers under Section 437 had to decide what offence was prima facie committed by the accused persons after a proper consideration of the evidence and the circumstances, and that the learned Additional District Magistrate had failed to do so; thirdly, there is no evidence on the record for committing the accused persons to the Court of Session under Section 467 of the Indian Penal Code or under any other section'; according to Mr. Dutt this is a case of 'no evidence'; lastly, both the complainant and the accused persons had examined witnesses and the committing Magistrate had jurisdiction and was within his rights to decide witnesses of which party were trustworthy and reliable. 7. On the other hand Mr. Dutt this is a case of 'no evidence'; lastly, both the complainant and the accused persons had examined witnesses and the committing Magistrate had jurisdiction and was within his rights to decide witnesses of which party were trustworthy and reliable. 7. On the other hand Mr. Mookerji appearing for the opposite party contends that the powers of a Magistrate acting under Chapter XVIII of the Code of Criminal Procedure are very limited indeed, that he cannot weigh The evidence of the witnesses, that the committing Magistrate has no power to decide whether a particular witness is trustworthy or, in other words, whether the witnesses can be believed or not and all that the committing Magistrate can do is to consider whether there is a 'prima facie' case against the accused and if he is so satisfied, then he has no alternative but to commit the accused persons for trial to the Court of Session. 8. It is necessary to refer to certain decisions which have been placed before me before I consider the legality, correctness or propriety of the judgement of the Additional District Magistrate and also the merits of the case, namely, whether there is any prima facie evidence for committing the accused to the Court of Session or in other words whether the learned Additional D strict Magistrate was justified in law and also on the facts in setting aside the order of discharge made by the learned Magistrate. 9. Mr. Dutt relies mainly on two recent decisions of the Supreme Court, one, Ramgopal Ganpatrai Ruia v. State of Bombay, (1958) SCR 618 : ( AIR 1958 SC 97 ) (decided on the 8th October, 1957), and the other Pramatha Nath v. Saroj Ranjan Sarkar, AIR 1962 SC S76 (decided on the 21st December, 1961). In the former case Sinha, J. (as he then was) after referring to the decision in the case of Lachman v. Juala. ILR 5 All 161 observed as follows : "Though the Code of Criminal Procedure was several times substantially amended after the date of that decision, the basic words "sufficient grounds" have continued throughout. In the former case Sinha, J. (as he then was) after referring to the decision in the case of Lachman v. Juala. ILR 5 All 161 observed as follows : "Though the Code of Criminal Procedure was several times substantially amended after the date of that decision, the basic words "sufficient grounds" have continued throughout. That decision was approved by a Division Bench of the Bombay High Court hi In re, Bai Parvati, ILR 35 Bom 163, and the observations aforesaid in the Allahabad decision were held to be an accurate statement of the law as contained in S. 209 of the Code, as it now stands. The High Court of Bombay held in that case that where the evidence tendered for the prosecution is totally unworthy of credit, it is the duty of the magistrate to discharge the accused. It also added that where the magistrate entertains any doubt as to the weight or quality of the evidence, he should commit the case to the Court of Session which is the proper authority to resolve that doubt and to assess the value of that evidence." Those observations were quoted with approval in the second case, namely, the case of AIR 1962 SC 875, in which case the expression "no sufficient ground for proceeding" in Section 203 of the Code of Criminal procedure arose inter alia for decision, in delivering the majority judgement of the Supreme Court Kaput, J. observed as follows : "In the circumstances the order made by tile previous Chief Presidency Magistrate was not in any manner manifestly absurd, unjust or foolish, nor can it be, said that the Magistrate ignored any principles which were necessary to apply tinder Ss. 202 and 203 of the Criminal Procedure Code nor is the order contrary to what was said in 1958 SCR 618 at p. 634: ( AIR 1958 SC 97 at P. 105), That was a case in which the rule in regard to commitment proceedings and the power of the Committing Magistrate to commit was discussed and the expression 'sufficient grounds' in Sections 209, 210 and 213 of the Code of Criminal Procedure was interpreted. That was not a casa dealing with the powers of the Magistrate under Secs. That was not a casa dealing with the powers of the Magistrate under Secs. 202 and 203 which was specifically raised and decided in Vadilal Panchal v. Dattatraya Dulaji, 1961 (1) SCR 1 : ( AIR 1960 SC 1113 )." His Lordship then quoted with approval the observations of Sinha, J. in (1958) SCR 618 at p. 634 : (A1R 1953 SC 97 at p. 105). 10. In the case of ILR 5 All 161 which was decided on the 15th September, 1882, Mahmood, J. observed a follows : "The object of the law in providing that the inquiry shall be held by the Magistrate before the accused has to undergo a trial in the Court of Session, seems to be to prevent the commitment of cases in which there is no reasonable ground for conviction. This provision of the law is calculated, on the one hand, to save the subjects from prolonged anxiety of undergoing trials for offences net brought home to them; and, on the other hand, to save the time of the Court of Session from being wasted over cases in which the charge is obviously not supported by such evidence as would justify a conviction. Taking this view of the law, I am of opinion that the cower given to Magistrates under S. 195 extends to weighing of evidence, and the expression "sufficient grounds" must be understood in a wide sense. I must not, however, be understood to lay down that this discretionary power should be exercised by the Magistrate without due caution, or that he should take upon himself to discharge the accused in Sessions cases in the face of evidence which might justify a conviction. But when the evidence against the accused is such that, in the opinion of the Magistrate, it cannot possibly justify a conviction, I hold that there is nothing in the law which prohibits the discharge of the accused, even though the evidence against him consists of witnesses who state themselves to be eye-witnesses, but whom the Magistrate entirely discredits. This being so, I could interfere in revision only, if, on considering the evidence produced on behalf of the prosecution, I came to the conclusion that the Magistrate had made a "material error" in discharging the accused, or had illegally and Improperly underrated the value of the evidence." 11. This being so, I could interfere in revision only, if, on considering the evidence produced on behalf of the prosecution, I came to the conclusion that the Magistrate had made a "material error" in discharging the accused, or had illegally and Improperly underrated the value of the evidence." 11. It seems to be well settled now that the Magistrate has the power to weigh the evidence and to see whether a witness is credible or not, whether a witness can be believed or not, not for the purpose of seeing whether a conviction may result after trial but for the purpose of seeing whether there are sufficient grounds for committing an accused person to the Court of Session. Mr. Mookerji argues that the Allahabad case was a case when the Code of Criminal Procedure, Act X of 1872 was in force and there being subsequent amendments of the Code the Allahabad decision cannot he an authority under the present Code in view of the difference in the language in the different amendments. Section 196 of the Code of 1872 which has been read by Mr. Mookerji is quoted below : "When evidence has been given before a Magistrate which appears to justify him in sending the accused person to take his trial for an offence which is triable exclusively by the Court of Session or High Court or which in the opinion of the Magistrate is one which ought to be tried by such Court the accused person shall be sent for trial by such Magistrate before the Court of Session of High Court, as the case may be." 12. Mr. Mookerji points out that in the corresponding provision, namely, Section 226 of the Code of Criminal Procedure (Act XXV of 1861) there was a difference in the language and the difference was that the accused was to be committed when the evidence appeared to be sufficient for the conviction of the accused person. 13. In the present Code the corresponding provision which is laid down in Section 210(1) is quoted below. 13. In the present Code the corresponding provision which is laid down in Section 210(1) is quoted below. "When upon such evidence being taken and such explanation (if, any being made) the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial, he shall frame a charge under his hand declaring with what offence the accused is charged." These, amendments were taken into consideration by his Lordship in delivering the judgement in the case reported in 1958 SCR 618 : ( AIR 1958 SC 97 ). His Lordship pointedly observed, "Though the Code of Criminal Procedure was several times substantially amended after the date of that decision, the basic words "sufficient grounds" have continued throughout." 14. Mr. Mookerji has referred to certain decisions. It is necessary to refer to the observations of Bose, J. in the case of Tara Singh v. The State, 1951 SCR 729 : ( AIR 1951 SC 441 ) (decided on the 1st June, 1951). Bose, J. observed at page 736 (of SCR) : (at p. 444 of AIR) : "All that he "(the committing Magistrate)" had to consider was whether under Section 209(1) there were sufficient grounds for committing the appellant for trial and not whether, on an appreciation of the whole evidence and other material in the case, including witnesses for the defence, the charge against him was proved." Mr. Mookerji has also placed before me the case of Sm. Gurai Bewa v. Narayan Prosad Jana, AIR 1954 Cal 531 (decided on the 4th February, 1953). In delivering the judgement J.P. Mitter, J. sitting with Sen, J. observed as follows : "The only question for decision is whether in view of the evidence and all the surrounding circumstances of the case the learned Magistrate's order of discharge of the petitioners was a proper one. It has been argued by Mr. Mukherjee for the petitioners, that Ss. 209, 210, 211 and 213 of the Code of Criminal Procedure clearly show that the learned Magistrate had jurisdiction to come to his own conclusion as to the credibility of the evidence before dim and that if he was minded to disregard that evidence and to hold that no charge could be framed thereupon, the order of discharge could not be assailed. Mr. Mr. Mukherjee further argued that the Magistrate's duty does not end whenever there appears to be a prima facie case, in other words, that the learned committing Magistrate has power to scrutinise the evidence and, if satisfied that the same is unworthy of belief, to discharge the accused, Mr. Mukherjee cited certain authorities in support of his contention but at the same time conceded that there were numerous other conflicting decisions." After stating Mr. Muhherjee's contention in the judgement J.P. Mitter, J. proceeded to observe. "It is unnecessary for us to review the judicial decisions on the subject of what should be the duty of a Committing Magistrate and to lay down any precise proposition relating to his duty. It is clear however that in the exercise of his powers under Sec. 209 Criminal P.C. no committing Magistrate should usurp the function of the jury. As to that, in our view, there can be no dispute. One might go further than this and say that it the evidence adduced admits of a different conclusion to that which the learned Magistrate has come to, it would be his duty to send the case to the jury. There could however be a case in which the evidence is such that no conviction could in any circumstance follow. Such a case should of course be never sent to a jury." 15. All that J.P. Mitter, J. decided was that if two views on the evidence were possible, then it was the duty of the Committing Magistrate to commit the accused to the Court of Session; but at the same time Mitter, J. added that if there was a case in which the evidence was such that no conviction could follow then such a casa should not be sent to the jury. Mitter, J. did not lay down that under no circumstances could the Committing Magistrate weigh the evidence or consider the credibility of the witnesses. 16. Appearing on behalf of the Stale Mrs. Maltra has placed before me the decision in the case of khushi Ram v. Hashim, 1959 Cri LJ 658 : AIR 1959 SC 542 , which according to Mrs. Maitra clearly lays down the powers and functions of a Committing Magistrate. After going through this judgement it does not seem that this applies to the facts of the instant case. 17. Maitra clearly lays down the powers and functions of a Committing Magistrate. After going through this judgement it does not seem that this applies to the facts of the instant case. 17. In short the recent Supreme Court decisions in the case of AIR 1962 SC 876 and also in the case of 1958 SCR 618 : ( AIR 1958 SC 97 ) are authorities for the proposition that where the evidence tendered for the prosecution is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused and that where the Magistrate entertains any doubt as to the weight or quality of the evidence, he should commit the accused to the Court of Session which is the proper authority to resolve that doubt and to assess the value of that evidence. Coming to the judgement of the learned Additional District Magistrate it appears that no exception can be taken to the point of law as formulated by him so far as it goes, "Though it is admittedly true that the committing Courts are not mere post offices to transmit each and every case to the Court of Session, it is not at the same time desirable that the committing Magistrate should usurp the function of the Judge and the jury by examining the evidence inch by inch. No doubt, the lower Courts are to screen out cases where the prosecution has hopelessly failed to establish a prima facie case but where there is reasonable doubt as to whether the prosecution story is to be believed or not, it is better that the committing Magistrate sends the case to the Court of Session for taking a decision." But he seems to have come to the finding that there is a prima facie case without properly considering the evidence of the witnesses and the circumstances of the case. The learned Additional District Magistrate is not right in thinking that the committing Magistrate had any reasonable doubt as to whether the, prosecution story was to be believed or not on the other hand the order of the committing Magistrate shows that he had no doubt whatsoever in his mind regarding the credibility of the prosecution witnesses and also regarding the point as to whether there was any legal evidence on the record from which he could come to a conclusion that there was a prima facie case against the accused under Sec. 467 of the Indian Penal Code or under any other section. This aspect of the matter was not properly considered by the Additional District Magistrate. The enquiring Magistrate has given cogent reasons as to why he considers the evidence of the witnesses, witness by witness, untrustworthy. I have been taken not only through the judgements of the two learned Magistrates but through the whole of the evidence adduced on behalf of the prosecution and also on behalf of the accused. The learned Magistrate did consider the circumstances, on which the prosecution relies, in the absence of satisfactory oral evidence, namely, that Surendra Kamilya was taken to the house of the accused persons on the 1st May, 1960, that the stamp was purchased on the following day, that the impugned document was executed on the 3rd May, 1960, and that Surendra died on the 4th May, 1950. There is some little dispute about the hour of his death; when the prosecution case is that he died sometime before dawn, the accused's case is that he died at about 3 O'clock in the morning, a difference of a few hours. 18. (His Lordship considered the evidence en merits and proceeded.) 19. In these circumstances, - the learned Additional District Magistrate was not right in setting aside the order of the learned enquiring Magistrate who was perfectly justified in considering the credibility of the witnesses and also in coming to the decision that there was no evidence or in other words, there were not sufficient grounds for committing the petitioners to the Court of Session for trial. 20. It has been argued before me by Mr. Dutt that three of the eight nephews of Surendra are minors. 20. It has been argued before me by Mr. Dutt that three of the eight nephews of Surendra are minors. I find from the order-sheet that after the nephews of Surendra appeared in Court the learned Magistrate had some doubts about the age of petitioner Anil and petitioner Naljni and, therefore, he called for a Medical Certificate which was never produced in Court. It appears from the statements of the accused under Sec. 342 of the Code of Criminal Procedure that petitioner Anil is about 11 years old and that petitioner Nalini is about 13 years old. I think this matter escaped the notice of the learned Additional District Magistrate. If Anil was really below 12, then the learned Additional District Magistrate should have considered whether he had attained sufficient maturity, in any case the learned Additional District Magistrate should not have directed the two petitioners, namely, Anil and Nalini to be committed to the Court of Session. 21. It is also not a little remarkable that Renupada Datta who is an employee in the office of the Sub-Registrar was also made an accused. At least I do not find any tiling on the record from which it can be said that lie is in any way connected with the impugned transaction. The widow of Surendra has said that Renupada Datta did not come to the house of Surendra Kamilya. But Surendra was not in her own house at the time when the document was executed; he was in the house of his nephews where he was being treated by petitioner purna who is a Kaviraj and also by some other physician. Therefore, it cannot be inferred from the evidence of the complainant that Petitioner Renupada Datta never went to the house where Surendra Kamilya was lying ill. There is no evidence whatsoever against Renupada Datta. 22. The learned Additional District Magistrate did not consider the case of each of these accused persons separately nor did he consider the evidence against each of the accused persons nor did he come to any finding as to what part, if any, each of these accused persons had taken in the transaction. A sweeping order that all the accused persons, including the clerk in the office of the Sub-Registrar, were to be committed, on the facts and in the circumstances of the case, cannot be supported. A sweeping order that all the accused persons, including the clerk in the office of the Sub-Registrar, were to be committed, on the facts and in the circumstances of the case, cannot be supported. Even if the prosecution evidence regarding removal of Surendra to the house of his nephews be accepted, that would only show that there was some haste which seems rather undue or unusual, and that may raise certain amount of suspicion in the mind but it cannot be inferred from those circumstances that any criminal offence had been committed or that the accused persons had any object of committing any offence. It may be equally possible that Surendra Kamilya had the intention of making a gift of a small parcel of land in favour of his nephews being satisfied with their nursing and treatment; and just before leaving this world he also made a gift on respect of a tiny parcel of land in favour of the Shebait of the deity. 23. In short it is not possible for me to say that the Magistrate who held the commitment enquiry had committed a material error in discharging the accused or had illegally or improperly under-rated the value of the evince. After consideration of the materials on the record I am unable to say that there is any prima facie evidence or there are sufficient grounds for committing the accused petitioners to the Court of Session. 24. In the result, the Revisional petitions, are allowed and the Rules are made absolute. The order of the learned Additional District Magistrate is set aside and the, commitment which was directed to be made by the learned Additional District Magistrate is quashed, me order of discharge under Sec. 209 of the Code of Criminal Procedure is upheld. Petitions allowed.