Chandreshwar Prasad Narain Singh and Another vs Arunendra Mohan Ghose

Rowland, J.—This is a reference by the Additional Sessions Judge of Patna in a pending proceeding instituted by Babu Arunendra Mohan Ghosh, complainant, alleging offences against four persons who on this complaint were summoned at first u/s 420, I.P.C. The complaint petition also mentioned another Section 406. The Magistrate heard evidence for the prosecution and there was some cross-examination of the witnesses before charge. The Magistrate by a considered order discharged two of the accused against whom he thought that no criminal offence had been made out, and as against the other two he framed charges under Sections 406 and Section 406 read with Section 114.

The Additional Sessions Judge makes the reference in this pending case on grounds which may be briefly summarised by saying that some of the evidence of the complainant and his witnesses did not appear to the Additional Sessions Judge to be reliable and that while the facts prima facie appeared to establish that there had been an entrustment of the jewels to the accused Raja Chandreshwar Prasad Narain Singh, and while there might have been conversion the conduct of the accused appeared consistent with their having been actuated by no criminal intent and might be capable of an innocent explanation. In so far as the reference is made on the ground that the Additional Sessions Judge takes a different view from the Magistrate on the question of credibility of witnesses, that is ordinarily not a ground on which a High Court will be inclined to interfere in revision. I may refer to the observations of Rankin, C.J. in Phakir Chand Mondal v. Madar Mondal 1931 Cal 619:

It is not the rule of the Court to interfere with decisions on facts upon evidence, except for special reasons and the referring Courts have again and again been asked to make their references subject to this consideration.

Those observations and others like them have been made in cases where a Sessions Judge refers to the High Court the proceedings of a case in which he is dissatisfied with the final result. The objections to making a reference or to interfering in revision are still stronger when the proceeding is a pending proceeding instituted in accordance with law and carried on regularly and in which no error of procedure is suggested to have been committed by the Magistrate before whom those proceedings are pending. The learned Additional Sessions Judge feels a doubt as to facts deposed to by the witnesses because of some discrepancies. But such criticism is premature. It has not been ascertained whether those facts are admitted or denied by the accused, still less whether any rebutting evidence is forthcoming. The evidence of the prosecution witnesses is the only evidence before the Court and at present the facts alleged have not been even denied not to say disproved.

It appears that the principal accused is a zamindar of wealth, rank and position and of advanced age, and the Additional Sessions Judge may have thought that in the case of such a man every presumption ought to be made that can be made against putting a dishonest and criminal interpretation on his acts where it may be possible to hold that he has in fact incurred no more than a civil liability. Every accused person is of course entitled to be presumed to be innocent till there is evidence of his guilt; and the presumption ought not to be too easily displaced; and it may be right to have regard to the position in life of the accused in considering whether it is displaced. That is not to say that by reason of wealth, position or age any subject is to be deemed to be immune from the consequences of his actions if in fact they are criminal. This much however may be said in the present case. There is provision in Section 342, Criminal P.C., for the Court to examine the accused at any stage of any inquiry or trial for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. In the present case it may be that the Magistrate holding the proceedings would have done well before framing charge to see whether the accused could give an innocent explanation of the facts and for that purpose to examine the accused and ascertain what according to them are the facts and what is the explanation they themselves offer. It is not a question of what explanation the ingenuity of lawyers can invent. Such imaginative suggestions are no substitute for the taking of a statement from the accused himself. So far the accused have neither admitted nor denied in these proceedings the entrustment, the conversion or the cheating alleged by the complainant. That being so, I regard the whole line of argument in favour of quashing these proceedings as preposterous in the literal sense of the term. I mean it is putting in front what should come after, or, as the saying is, placing the cart before the horse. After the accused give an explanation, the question can be considered whether such an explanation can be accepted.

The result is that the reference will be discharged and the record sent back to the Court of first instance for carrying on the proceedings. I may however observe without derogating from the discretion of the Magistrate in the conduct of the proceedings before him that it is still open to him to take an examination of either or both of the accused in accordance with Section 342 of the Code and according to what may appear to him as the result of that examination he may either continue the proceedings in their present form or may cancel, alter or amend the charge u/s 406 or substitute for it a charge u/s 403 or u/s 420 as the case may be, according as he may think fit.