Devi Dayal vs The State of Himachal Pradesh

Chet Ram Thakur, J.—These are the two criminal revisions, one filed by Devi Dayal, who has been convicted u/s 380 I.P.C. and given the benefit of Section 3 of the Probation of Offenders Act and let off with an admonition to refrain from committing any such offence in future, and the other is by the State against setting aside the sentence of imprisonment and giving the benefit u/s 3 of the Probation of Offenders Act as the circumstances of the act were such which did not warrant such a lenient view.

Devi Dayal is in the service of the Excise Department of the Central Government and was posted as a Deputy Superintendent of Narcotic in Indore in Madhya Pradesh on 10-12-1969. According to the Petitioner he had put in about 21 years of service till then in the department. He is a resident of Surajpur in the erstwhile Mehlog State now a part of Solan district.

He had civil litigation with Gurdial Singh, who is a Field Qanungo at Solan and his brother Ram Karan, Superintendent, Deputy Commissioner''s Office Mahasu. Gurdial Singh and Ram Karan are the sons of Bairagi Ram. Gurdial Singh field a civil suit in the Court of Sub-Judge, Solan, against the present Petitioner, in which Ram Karan was made a proforma Defendant. It is said that the evidence of Guridal Singh had been recorded and the Petitioner on 4-12-1969 put in a number of documents as a basis of his reliance. These documents included one of the documents which was the subject matter of the criminal trial, i.e. a copy of an application submitted by the present Petitioner to the Rana of Mehlog in 1946 against Bairagi Ram, father of Gurdial Singh and Ram Karan. The common facts are that in this case the Petitioner has cited the Rana of Mehlog as his witness in the suit against him. Shri Moudgil Advocate was appointed as Commission to record the evidence of the Rana. On 10-12-1969, it is stated, the Petitioner went to the court of the Sub-Judge to enquire whether commission had been issued or not. Now the prosecution story is that when the accused asked the Ahlmad about this fact, the Ahlmad took out the relevant file and after having looked into it, informed the Applicant that the commission had been duly issued and thereafter he placed the file on his table. It was civil suit file No. 44/69 titled Gurdial Singh v. Devi Dayal of the Court of Sub-Judge, Solan. Thereafter Suresh Chand Ahlmad sat with his back toward the table and in the meanwhile, according to the prosecution, he found that the Petitioner was trying to run away from that place. He suspected a foul play. Then he along with Sukh Ram Bailiff, who was also therein the hall, ran after the Petitioner and caught hold of him. At that time, it is stated, the Petitioner was seen to have taken out a paper from his coat-pocket and put it in his mouth. The two officials over-powered the Petitioner and managed to take out the paper from his month and on taking it out the same was found to be a document from the civil suit file which was taken out by the Ahimad to see whether the commission had been issued. He reported the matter to the Sub-Judge, who in turn informed the police. A case u/s 380 I.P.C. was registered and the accused was challenged.

The trial court found the offence made out against the accused and convicted him u/s 380 I.P.C. and imposed a sentenced of imprisonment of six months. Thereafter the accused filed an appeal before the Sessions Judge, who by an order under revision, maintained the conviction but keeping in view the fact that he was not a previous convict gave him the benefit of Section 3 of the Probation of Offenders Act, 1958 and accordingly released him after due admonition that he would refrain from doing any such offence in future.

In revision by the Petitioner it has been contended that the Court had denied a proper and adequate opportunity to defend himself and produce his defence evidence both oral and documentary, inasmuch as seven witnesses out of nineteen witnesses sought to be summoned by the Petitioner were allowed to be produced, Important material documents having close bearing on the pleas of defence were disallowed. Such arbitrary denial of opportunity has not only caused serious prejudice to the Petitioner but is tantamount to clear violation of and non-compliance with the mandatory provisions contained in Sections 251(8) and (9), 256 and 257 of the Code of Criminal Procedure.

On the other hand the learned Counsel for the Respondent has submitted that it is the discretion of the trial court to permit evidence keeping in view the circumstances of each case. According to him, the trial court had rightly exercised its discretion in refusing to summon the defence witnesses. Further that there was ample evidence on the record to justify and uphold the conviction of the accused on the material placed. He has also drawn my attention to Section 167 of the Evidence Act as also tried to interpret Section 257 of the Code of Criminal Procedure to show that there vests a discretion in the Magistrate to summon or to refuse defence witnesses for the reasons mentioned in the section and that the learned Magistrate had rightly exercised that discretion by refusing to summon the defence evidence.

The Petitioner field his list of defence evidence both oral and documentary on 24-12-1970. The order of the learned Magistrate is dated 31-12-1970. By this order he allowed a few witnesses to be summoned but about the remainder he observed that after having discussed what those witnesses were likely to depose with the learned Counsel and having gone through the documents attached he found that the accused was trying to take the defence that Gurdial Singh was having enmity with him and that he was the master mind behind the complaint and all the prosecution witnesses were giving false testimony at his instigation. Further from the documents which were sought to be summoned he merely wanted to say that there had been some dispute regarding the land between the accused and Gurdial Singh. They nowhere show that Gurdial Singh was in any way responsible for the incident as alleged by the prosecution witnesses. It has also been observed that most of the witnesses are from the State of Madhya Pradesh and some are from Delhi and that he was satisfied that the accused had given this abnormally large list of witnesses and from such a distance merely to delay the case. Their testimony was not going to help the accused in his defence in any way Section 257(1) of the Code of Criminal Procedure reads as:

If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing.

Therefore, this section would show that the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing. The list discloses that some of the witnesses, such as at serial Nos. 1, 7 to 10 and 15 were all witnesses from District Mahasu of which Solan was a tehsil on 24-12-1970 when the application as also the order on the application appears to have been made. But the learned Magistrate stated that this long list had been made with the object to delay the case. The learned Sessions Judge before whom this point was also agitated has in para 11 of his judgment observed that the file showed that the accused has sought to summon various witnesses from far off places and the S.D.M. found that they were not of any avail and also that their summoning was to aim at delaying the case and that it had been admitted by the Appellant that such evidence was sought to be summoned to prove the enmity between the Appellant and Gurdial Singh. Any such dispute between the two parties was already proved on record inasmuch as they were already agitating their respective contentions in a civil suit and were thus having difference. Shutting of the defence under the circumstances cannot be said to prejudice the defence of the accused inasmuch as none of the witnesses disallowed was to touch or to say anything about the incident in question. In my opinion, the observations made by the learned Sessions Judge do not appear to be correct. From the record, to which my attention has been invited, it is proved that the case was put in the Court on 18-1-1970. The charge was framed on 18-6-1970. The evidence of P.W. 1 was recorded on 2-9-1970, the evidence of other P.Ws. was recorded on 15-12-1970 and the statement of the accused was recorded on 26-12-1970. The accused had filed the application for summoning his defence evidence immediately thereafter and the order of rejection was made on 31-12-1970. Therefore, from this it cannot be spelt out that the accused had made this application simply with the intention to delay the case. When the prosecution took such a long time there was no reason why the accused could not be granted time for his defence evidence especially when, as pointed out above, most of the witnesses belong to Mahasu district of which Solan was a part at that time and they did not belong to any remote area. It is not the sole ground that the application was made with the intention to delay the case, rather the learned Magistrate has held that this evidence will not assist the accused in any way. Section 257 Code of Criminal Procedure makes it obligatory on the part of the Magistrate, except in the cases specified therein, to issue process at the instance of the accused to compel the attendance of the witnesses named by him and non-compliance with this section in this respect is not a mere irregularity curable by the application of Section 537 Code of Criminal Procedure rather it is an illegality which will cause serious prejudice to the accused. The Magistrate can only refuse to issue process to the witnesses only where the application is made for the purpose of vexation or delay. But, as would be a apparent, the Court has been quite indulgent in granting adjournments to the prosecution for the completion of its case but in so far as the accused is concerned he was not allowed even a single opportunity to summon his witnesses merely on the ground that the list of witnesses discloses that they belong to far off areas and that it was intended to delay the case, which, in my opinion, is not a good ground. The mere fact that the Magistrate thinks that the evidence of the proposed witnesses will not be material or will not assist the accused is not sufficient for refusing application for summoning the witnesses. The ground that the witnesses belong to remote areas is also not a sufficient ground for refusing to summon the witnesses. The Magistrate has ordered that some persons out of the list whose names he has mentioned in the order may be summoned, but, in my opinion, it is not open for the Magistrate to take upon himself the responsibility of selecting the witnesses for the defence and his duty under the Code is to issue process for the attendance of all the witnesses named by the accused. Merely because the number of witnesses is quite large, the Magistrate cannot refuse to summon the witnesses on the ground that it would cause delay. In view of this it was not fair for the learned Magistrate to have rejected the prayer of the accused to summon his defence witnesses and this definitely has caused prejudice to the accused which has vitiated the trial. The observation of the learned Sessions Judge that in view of the circumstances that they were not necessary witnesses about the incident is not a good ground. It amounts to prejudging the case. It cannot be said as to what was the real object of the accused in summoning the witnesses. Since the accused had not been allowed any opportunity before that date, therefore, it cannot be said that this application was made with the intention to delay the case.

In Sudhir Kumar Dutt and Ors. v. The King AIR 1949 F C 6 it had been held that the provisions of Section 257 are mandatory and the Court has no discretion to refuse to issue process unless it is of opinion that application should be refused for reasons stated in the section. But, as I have already stated, it is not the sole ground that the application was intended to delay the case but further that the witnesses were not material or will not assist the defence in any way. In so far as the delay is concerned it is amply clear from the record that the accused had not at all been afforded any opportunity before that date when this order was passed. Similarly was the view taken in Ronal Wood Mathams and Ors. v. State of West Bengal AIR 1954 S.C. 455.

In Taj Mohammad v. Emperor AIR 1928 Lah 125, where a Magistrate declined to summon all the witnesses cited on behalf of the accused and took upon himself the duty of arbitrarily selecting only a few witnesses who were to be summoned to give evidence for the defence, adjourned the case for hearing at an out of the way place and continued the hearing in spite of High Court''s order directing the Magistrate to give every reasonable facility to the accused to produce his defence evidence, and to hold the trial of the case either at the headquarters of the district or at a place easily accessible, called the accused and his counsel and pronounced judgment at an odd hour inflicting upon the convict the maximum term of imprisonment, it was held that the proceedings taken by the Magistrate show that he did not hear the case with that judicial detachment which should characterize the trial of a criminal case, and that he allowed his executive zeal to outrun his judicial discretion. So, in this case also the learned Magistrate did not hear the case with that judicial detachment which was expected of a judicial officer with a fair and impartial mind inasmuch as he took upon himself the duty to select the witnesses out of the list given by the accused and in refusing to summon the other witnesses and in prejudging the case by observing that they will not lend any support to the defence.

In similar circumstances in Junto Lal Bakhsh v. Emperor AIR 1941 Sind 177, it was held that a Magistrate u/s 257 cannot refuse to call witnesses whom an accused desires to be summoned in his defence because their number is large or the result would be to delay the case or because enough witnesses have been examined. It is not the fact that the case would be delayed which is the decisive ground u/s 257.

Therefore, in the light of these authorities it is abundantly clear that the refusal of the Magistrate to summon the witnesses has seriously prejudiced the accused and the proceedings thereby have been vitiated. Learned Counsel for the State cited Section 167 of the Indian Evidence Act to show that there was ample evidence on the record and the Court could decide on the basis of that. But it may be stated that Section 167 of the Indian Evidence Act on which the learned Counsel relies is not relevant for the present purposes. It only says that where inadmissible evidence has been improperly admitted or admissible evidence has been rejected such rejection or acceptance of evidence shall not be a ground by itself for a new trial or reversal of any decision in any case unless in the opinion of the court, before which such objection is raised, substantial wrong or miscarriage of justice has thereby occasioned. Here the case is whether the accused has been prejudiced by refusing to summon the witnesses in his defence and there is no question of any rejection or acceptance of any proper or improper evidence by the Magistrate.

Learned Counsel for the Respondent has also invited my attention to para 8 of the judgment of the learned Sessions Judge where he has discussed the defence evidence. In fact he has not commented upon the evidence whether that evidence was worth reliance or not and he has made only one observation about the defence evidence that when the evidence is read as a whole it does not appeal to conscience. But this is not the way to comment upon the evidence. These witnesses are also stated to be present near the place of occurrence and it is not understood why the Petitioner who is not a man of ordinary status but is a man of high social status should have committed such an offence so as to remove the document filed by himself in support of his case. It was not the original, rather it was a copy of the original which was filed in the Court.

Learned Counsel for the Petitioner has also drawn my attention to the statements of witnesses, namely Sukh Ram (P.W. 2), Suresh Chand (P.W. 3) and Puran Chand (P.W. 1) who are the material witnesses in this case. Learned Counsel for the Respondent has contended on the basis of Harihar Chakravarty Vs. The State of West Bengal, that the revisional jurisdiction conferred on the High Court u/s 439 Code of Criminal Procedure is not to be lightly exercised. That is true that the scope of interference in exercise of revisional powers by the High Court is quite limited but when the order is based on wholly irrelevant and no evidence at all then necessarily the High Court has got vast powers to interfere and rectify the wrong. In the instant case after having gone through the evidence, through which my attention has been drawn, I find that there is no corroboration, the file is said to be on the table, the clerk turns his back, immediately he sees the accused running away, the file is not taken away by the accused when he was running and on a suspicion being raised the Ahimad along with another ran after him and caught hold of the accused and then the accused is stated to have took out the paper from his pocket and put it in his mouth, which is highly improbable. How be could take out the paper from the file which was lying just on the table by the side of which the witness was sitting, then there are very serious contradictions in the statements of the witnesses. Therefore, in these circumstances, there was no evidence on the basis of which this order of conviction could be based. In view of this there being no evidence, the order cannot be sustained.

The contention of the learned Counsel for the Respondent that there are concurrent findings of both the courts below and as such the High Court should not interfere in view of the circumstances of the case stated above is not tenable. In Kaur Sain Vs. The State of Punjab, it has been held that although Supreme Court will not normally undertake fresh appraisal of evidence in case of concurrent findings but where the prosecution story is fiction-like and inherently impossible of belief on account of several infirmities in the judgments of Courts below, the Supreme Court will interfere and set aside the conviction and sentence. In these judgments also there are several infirmities, as stated above, and, therefore, this is a case where in the interest of justice this Court must interfer despite the concurrent findings of the two courts below. Similarly in re Esakki Thevar and Ors. AIR 1960 Mad 115 , it has been held that the High Court could and does interfere in criminal revision, even upon findings of fact, and even though they may be concurrent findings of two courts below, where the conscience of the court is satisfied that, in the broad interest of justice, the conviction is not sustainable.

In the light of the above, I am of the view that the judgment of the learned Sessions Judge as also that of the trial court are based on no evidence and there are several infirmities and the story is inherently improbable. Further there is the question that the courts below have not touched the point whether the necessary ingredients that of dishonest intention has been proved in the case. I need not dwell on this point as the revision succeeds on the other two points and, therefore, the revision petition must be accepted and the conviction must be set aside and which I accordingly do. The result, therefore, is that the conviction and sentence are set aside and the Petitioner is acquitted.

In view of the fact that the revision petition of Devi Dayal has been accepted and he has been acquitted, therefore, the revision petition by the State becomes infructuous and is herby dismissed.