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Allahabad High Court · body

1967 DIGILAW 464 (ALL)

Janki Prasad v. State

1967-12-14

S.D.SINGH

body1967
ORDER S.D. Singh, J. - This reference has been made by the Sessions Judge, Budaun, in respect of a case which is going on in the court of the Additional District Magistrate (Judicial) u/s 379 of the IPC. 2. The case against the Applicant, Janki Pd. and two others, Madan Mohan and Har Sumran, has been started on the basis of a complaint, which has been filed by one Ram Charan Lal Goyal. Ram Charan Lal Goyal was a tube-well operator at tube-well No. 61 and it appears that he was transferred to district Ghazipur and was reluctant to go there. His successor, Har Sumran, appears not to have succeeded in obtaining the charge from Ram Charan Lal. According to the allegations in the complaint the complainant was sent for by Sri Janki Prasad, the Executive Engineer, on the morning of 7-12-1965 and asked to sign a certain blank paper which he refused to do and it is alleged that Sri Janki Prasad and the other two accused in the case abused him and beat him with fists and kicks and even threatened to kill him. The complainant somehow managed to escape and went, according to his allegations, to police station Ujhiani and when he returned to tube well No. 61, he found that his lock had been broken open and his personal effects which had been kept there removed by or at the instance of Sri Janki Prasad. It appears that an inventory was prepared in which everything that is said to have been found inside the tube well was noted down, but the complainant's allegation is that among his personal effects was a leather attachee which contained some cash and gold and silver ornaments, a list whereof is given in the complaint. This attachee is alleged to have been removed by Sri Janki Prasad without being entered in the inventory. The complainant, therefore, alleged that the three accused had committed theft and filed the complaint u/s 379 of the IPC. 3. The Magistrate recorded the statement of the complainant and when he was required to produce evidence u/s 202 of the Code of Criminal Procedure he examined five witnesses, Bhawani Ram (PW 1), Vir Sahai (PW 2), Hemraj (PVV 3), Majid Ahmad (PW 4) and Hiralal (PW 5). 3. The Magistrate recorded the statement of the complainant and when he was required to produce evidence u/s 202 of the Code of Criminal Procedure he examined five witnesses, Bhawani Ram (PW 1), Vir Sahai (PW 2), Hemraj (PVV 3), Majid Ahmad (PW 4) and Hiralal (PW 5). On the basis of this evidence the Magistrate seems to have come to the conclusion that prima facie case was made out and the accused were, therefore, summoned in the case u/s 409 of the IPC under his order dated 24-2-1966. 4. An application was then moved by the Public Prosecutor, who appears to have taken up the defence on behalf of the Applicant Janki Prasad, that he was acting in his official capacity as Executive Engineer when he gut opened the lock of the tube well and therefore, the case may not be proceeded with without the prior sanction of the Government u/s 197 of the Code of Criminal Procedure. This application was dismissed by the Magistrate. Sri Janki Prasad then went up in revision which has been allowed by the Sessions Judge and a reference made to this Court. 5. Three points were raised before the Sessions Judge during the hearing of the revision by him: (1) That the Magistrate in asking the Applicant Sri Janki Prasad to send to him the inventory or copy thereof contravened the provisions of Sub-clause (3) of Article 20 of the Constitution and that, therefore, the proceedings in his Court were vitiated; (2) that no prima facie case is made out on the basis of the evidence examined on behalf of the complainant and the Magistrate should not, therefore, have passed an order summoning the accused in the case u/s 409 of the IPC; and (3) that the offence alleged to have been committed by the Applicant was while acting or purporting to act in the discharge of his official duties and therefore, the case could not proceed against him without prior sanction of the State Government u/s 197(1) of the Code of Criminal Procedure. 6. So far as the first point is concerned, the direction by the Magistrate requiring the Applicant Janki Prasad to send to him the inventory or a copy thereof was certainly without the authority of law. 6. So far as the first point is concerned, the direction by the Magistrate requiring the Applicant Janki Prasad to send to him the inventory or a copy thereof was certainly without the authority of law. There is no provision in the Code of Criminal Procedure under which Magistrate could ask the accused to send any particular paper in his possession to him. The police may, during the investigation of a case take a document from the possession of an accused person and rely upon the same for the proof of the offence against the accused; but certainly there is no provision under which the Magistrate may, in a complaint case, issue any such direction. It cannot, however, be said that the provisions of Clause (3) of Article 20 of the Constitution were contravened in this case. This Clause (3) of Article 20 reads: 20(3)--No person accused of any offence shall be compelled to be a witness against himself. In being directed to produce the inventory which is said to have been prepared when the lock of the tube well was broken open, it cannot be said that Sri Janki Prasad was directed to be a witness against himself. This inventory does not support the prosecution case against Sri janki Prasad. It is, as a matter of fact, a document which would be relied upon by him in his defence. It Vas conceded on behalf of Sri Janki Prasad when the Public Prosecutor moved his application, before the Magistrate on 26-3-1966 that Sri Janki Prasad got the lock of the tube well opened. If this is conceded on behalf of Sri Janki Prasad, the inventory which was prepared at the time, would in no way support any other allegation which may be made by the complainant against Sri Janki Prasad or any other accused in the case. As a matter of fact Sri Janki Prasad will himself rely upon this inventory to make out his defence that everything what was found inside the tube well building was entered in the list. It is not, therefore, a document on the basis of which it can be said that Sri Janki Prasad was compelled to be a witness against himself. 7. It is not, therefore, a document on the basis of which it can be said that Sri Janki Prasad was compelled to be a witness against himself. 7. All what can be said in respect of this contention on behalf of the Applicant, therefore, is that the procedure adopted by the Magistrate was irregular and the Applicant may even be entitled to say that the inventory thus secured from him should not in any way be relied upon by the prosecution unless it is brought on record in due course of the proceedings at a subsequent stage. Subject to this observation it cannot be said that the proceedings are in any way vitiated by this direction of the Magistrate. 8. In respect of the second contention also the Applicant Sri Janki Prasad has no case whatsoever and it is a little surprising that Sessions Judge found the evidence produced by the complainant u/s 202 of the Code of Criminal Procedure unsatisfactory. All what was required to be seen by the Magistrate at the stage of Section 202 of the Code of Criminal Procedure was whether any prima facie case was made out. Five witnesses were examined by the complainant in addition to his own statement which had been recorded earlier and I do not find anything in these statements to indicate that what the witnesses had stated was not correct. This may not be the view taken of the evidence of the complainant after the witnesses have been cross-examined and all aspects of the case considered at their proper place, but at the present stage of proceedings a prima facie case has certainly been made out and the Magistrate was right in summoning the accused persons named in the complaint u/s 409 of the IPC. 9. The last question relating to the sanction u/s 197 of the Code of Criminal Procedure also, so far as the evidence at present stands, does not appear to have been correctly decided. The Session's Judge refers to a decision of the Hon'ble Supreme Court given in Baijnath Gupta and Others Vs. The State of Madhya Pradesh, AIR 1966 SC 220 but curiously enough he seems to have misunderstood the decision in the case. The Session's Judge refers to a decision of the Hon'ble Supreme Court given in Baijnath Gupta and Others Vs. The State of Madhya Pradesh, AIR 1966 SC 220 but curiously enough he seems to have misunderstood the decision in the case. All the same the Learned Counsel for the Applicant Sri Janki Prasad stated during the hearing of the revision that his client would not press his contention in respect of the sanction u/s 197 of the Code of Criminal Procedure at this stage and that consequently no decision may be given on that point and that liberty may be given to him to raise this question when the entire case comes up for final hearing. 10. In these circumstances, therefore, this reference is rejected.