Shreekant Pathak and Others vs Emperor

Sinha, J.—This appeal is directed against the orders of the learned Sessions Judge of Monghyr whereby he ordered that complaints be filed against the three appellants, that is to say, against (1) Shreekant Pathak, u/s 193, Penal Code, (opposite party in Miscellaneous case No. 1 of 1943 before him); (2) Parmeshwar Kandu, Chaukidar, u/s 211, Penal Code, (opposite party in Miscellaneous case No. 2 of 1943 before him); and (3) Ajo Gope, u/s 193, Penal Code, (opposite party in Miscellaneous case No. 3 of 1943 before him).

The facts of this case in so far as it is necessary to state them are as follows : On 80th August 1912, a Blenheim Bomber crashed in or near village Rohiar, Police Station Chautham, in the district of Monghyr. Three occupants of that bomber were alleged to have been murdered by a number of persons belonging to the locality. A first information report is alleged to have been lodged by the chauki-dar appellant, named Parmeshwar Kandu, on 25th September 1942, before the Sub-Inspector, in which the alleged first informant is said to have stated that ho had himself witnessed the occurrence. The Sub-Inspector of Police, during the course of his investigation, got the statements of the appellants Shreekant Pathak and Ajo Gope recorded by a Magistrate under the provisions of Section 164, Criminal P. C. It is said that these two persons had made statements to the effect that they had seen some persons committing the murder of the occupants of the ill-fated bomber. After investigation, the case was made over to the Special Judge of Monghyr to be tried under the provisions of Ordinance 2 of 1942. Before the learned Special Judge, who began the hearing of the case on 15th May 1943, all the three appellants stated that they had not seen the occurrence, but had been coerced by the police to figure as eye-witnesses, and in the case of the chaukidar to lodge the first information as an eye-witness. As a result of the statements of these persons, the learned Special Judge discharged the accused persons, as there was no evidence forthcoming against them. On 22nd of May 1943, an application was made on behalf of the Crown before the learned Special Judge to file a'' complaint against them u/s 193, Penal Code, for having made false statements before him. It may be noted at this stage that the Crown took the additional burden of proving,,in the event of a complaint being filed, against the appellants, that their statements before the Special Judge were deliberately false and that their statements made during the course of investigation of the case by the police, respectively, in the first information report and before the Magistrate u/s 164 of the Code were true. On 27th May 1943, the learned Special Judge issued notice on the appellants to show cause why they should not be prosecuted for perjury. Before the appellants could appear to show cause against the notice served upon them, Ordinance 2 of 1942 had been repealed by ordinance 19 of 1943, with the result that the Special Courts created by the repealed Ordinance ceased to exist.

In July 1943, the appellants appeared before the learned Sessions Judge of Monghyr who, after the repeal of Ordinance 2 of 1942 had withdrawn to his own file the cases which were until 26th June 1943, supposed to be pending in the Court of the Additional Sessions Judge of Monghyr who happened to be the Special Judge before whom these appellants had made their statements which were the subject-matter of the charge. against them. It is only necessary to mention here that on the repeal of Ordinance 2 of 1942 the Additional Sessions Judge treated himself as the successor-in-office to the Special Judge simply because the presiding officer of the two Courts was the same. On the abolition of the Court of the Additional Sessions Judge on 26th June 1943, the Sessions Judge treated himself as being in seisin of the case. In their show-cause petition, the appellants contended that they could not legally be prosecuted and that they had not made any false statements in the Court of the Special Judge, inasmuch the statements before the police or before the Magistrate u/s 164, Criminal P. C, had been extorted from them under coercion by the police. The learned Sessions Judge of Monghyr overruled these objections and directed, as stated above, that two of the appellants, who had made their statements u/s 164, Criminal P. C, to the learned Magistrate, should be prosecuted u/s 193, Penal Code, and the chaukidar-appellant, Parmeshwar Kandu, was directed to be prosecuted u/s 211, Penal Code, for having lodged a false first information report, and not u/s 193, Penal Code, as proposed by the Crown, perr haps because the learned Sessions Judge felt a difficulty in his case about the applicability of that section. Hence the appellants have preferred this present appeal against that order of the learned Sessions Judge.

From the facts given above, it is obvious that the learned Sessions Judge''s proposed complaint against the chaukidar, Parmeshwar Kandu, u/s 211, Penal Code, is entirely misconceived. It is not the prosecution case that the statement made by the chaukidar before the Sub-Inspector of Police as, contained in the first information report is false. The prosecution would make it out that the chauki-dar''s statement in the Special Judge''s Court, resiling from his statement as made in the first information report, was untrue. That being the position, I fail to see how the chaukidar could be said, on the -prosecution.case itself, to have instituted a deliberately false case. On that simple ground, in my opinion, the order of the learned Sessions Judge for filing a complaint against the chaukidar should be set aside. But the legal difficulty in the way of the prosecution is common to the case of all the three appellants. .

The legal bar urged by the appellants against the order of the learned Sessions Judge is that he had no jurisdiction to entertain the application on behalf of the Crown for lodging a complaint against these appellants, inasmuch as under the provisions of S.476, Criminal P. C, the Special Judge cannot be said to be the same Court as the Court of the Sessions Judge. That being so, the offence, if any, could not be said to have been committed in, or in relation to, a proceeding in the Court of the learned Sessions Judge. After the repeal of Ordinance 2 of 1942 as aforesaid, the Court of the Special Judge at Mon-ghyr ceased to exist, and the Legislature did not make any provision to the effect that the Sessions Judge could be deemed to be a successor-in-office to the Court of the Special Judge. Section 3 of Ordinance 19 of 1943, makes only a limited provision in respect of any sentence passed by a Special Judge, that is to say, a sentence passed by the Special Judge under the repealed Ordinance would continue to have effect as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure by a Sessions Judge. The learned Advocate-General, appearing on behalf of the Crown in support of the order of the learned Sessions Judge, contended that it had been held by the Federal Court in AIR 1943 36 (Federal Court) that the Court of the Special Judge was a Court without jurisdiction. But the Federal Court did not hold that the ordinance 2 of 1942, creating the Special Courts was itself ultra vires of the Legislature. It has been held by this Court that the Special Courts created by that Ordinance had been properly and validly constituted; but, in so far as that Ordinance purported to invest these Special Courts with jurisdiction to try a certain specified class of cases, the Legislature had acted beyond its powers; see the case in Jailal Sahu v. Emperor A. I. R. 1943 Pat. 346 . That decision has been upheld by the Federal Court in the case reported in AIR 1944 1 (Federal Court) Hence, the position is that, though the Special Courts had been validly constituted by the Legislature, the latter had not validly invested them with the proper jurisdiction to try any particular class of cases.

Hence, the learned Advocate-General''s argument that the Special Judge in the present case, being without jurisdiction to try the case before him, should be deemed to have been acting as Additional Sessions Judge is not tenable. This argument of the learned Advocate-General gave a handle to counsel for the-appellants to contend that, as the proceedings? before the learned Special Judge were with-! out jurisdiction, no offence under the Indian Penal Code could in law have been committed1 by any of the appellants even assuming that � they made false statements before him, inasmuch as it could not be said to have been-committed in, or in relation to, any judicial i proceedings so as to attract the provisions of Section 476, Criminal P. C. Reliance was placed for this proposition on a decision of a single Judge of the Allahabad High Court reported in Sumat Prasad v. Emperor AIR 1942 All. 11 in which the previous decisions of the same Court in the cases in Babu Ram v. Emperor 11 I.C. 141 , Empress v. Makhni 1890 A.W.N. 100 and Abdul Rahman v. Emperor 32 All. 30 : 3 I.C. 952 were referred to. I need not elaborate this point any further inasmuch as, in my opinion, the appellants'' contention that, the Court of the Special Judge having been abolished and no successor to that Court having been provided for by the repealing ordinance 19 of, 1943, the learned Sessions Judge had no jurisdiction to direct the filing of a complaint against each one of the appellants is well-founded.

The learned Sessions Judge, while discussing the point raised before him as regards his jurisdiction to act in the matter, observed that u/s 3 of Ordinance 19 of 1943 the sentence passed by the Special Judge shall continue to have effect as if the trial at which it was-passed had been held in accordance with the Code of Criminal Procedure by a Sessions-Judge, and, therefore, the Sessions Judge, according to "the spirit of Section 3," would take the place of the Special Judge. I cannot find anything in Section 3 of Ordinance 19 of 1943 to lead to any such construction. On a strict, interpretation of the repealing ordinance 19 of 1943 it is apparent that the Legislature did not intend to make any provision as is sought to be read into it by the learned Sessions. Judge. It may be that the Legislature omitted to consider and, therefore, to provide for, such, a contingency but as the statute stands at. present it cannot lend itself to the construction that the Sessions Judge has been constituted the successor-in-office to the Special. Judge of the place. Again, the learned Sessions Judge remarked:

Ordinance 2 of 1942 vested merely a special jurisdiction in the Sessions Judge of the District and affected only the procedure to be followed in a particular class of cases or offences and the Special Judge exercising such jurisdiction in Monghyr did not cease to be the Sessions Judge of the District. The provisions of Section 476, Criminal P. C, are of general character and an enquiry under this section can, in my opinion, be undertaken by this Court as the successor of Mr. Imam before whom, sitting as Special Judge, the statements in question were made by the witnesses concerned.

The question from the judgment of the learned Sessions Judge suffers from the confusion between the same person functioning as the Special Judge and the Sessions Judge or the Additional Sessions Judge of the place. The presiding officer of the two Courts may be the same; but the two Courts are entirely different. They were two parallel Courts, and, like two. parallel lines, they could never meet. The learned Sessions Judge could, by no stretch of language, be said to be the successor-in-office to the Special Judge in the absence of any specific provision either in Ordinance 2 of 1942 or in the repealing ordinance 19 of 1943. The learned Advocate-General contended that tinder the provisions of Ordinance 2 of 1942 only Sessions Judges or Additional Sessions Judges could be Special Judges and that, if the Special Judge did not have jurisdiction to hear the case in question, the case should be deemed to have been heard by Mr. Naqui Imam (the Special Judge in this case) as the Additional Sessions Judge of Monghyr. In the first instance, the first premise itself is wrong. u/s 4 of ordinance 2 of 1942 any person who has acted for a period of not less than two years in the exercise of the powers of a Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure could have been appointed a Special Judge. Hence, it was open to the Provincial Government to appoint any retired Sessions Judge or Assistant Sessions Judge or any Magistrate, who had exercised those powers for two years, to be a Special Judge. Again, simply because Mr. Naqui Imam was the Additional Sessions Judge of Monghyr, it does not follow as a natural corollary or by way of necessary legal inference that, as he could not exercise jurisdiction as a Special Judge, he must be deemed to have been acting as the Additional Sessions Judge of Monghyr. As already indicated, the two Courts were entirely distinct and separate irrespective of the presiding officer of the two Courts. As a result of all these considerations, I have come to the conclusion that the learned Sessions Judge of Monghyr had absolutely no jurisdiction to entertain the applications on behalf of the Crown u/s 476, Criminal P. C, and to direct the filing of complaints against these appellants. As the appeal succeeds on this preliminary ground, it is unnecessary to go into the merits of the other contentions raised on behalf of the appellants, though I am far from saying that there are no merits in those contentions, In the result, I would allow the appeal and quash the orders of the learned Sessions Judge directing the fil ing of the complaints against these appellaflts..

Agarwala, J.

I agree.