The State vs Biren Dey

Deka, J.—The State of Assam has filed one appeal (Government Appeal No. 3 of 1953) and an application u/s 439 of the Code of Criminal Procedure (Cr. Revision No. 34 of 1953) against an order of the learned Additional Sessions Judge, dated 24.1.53, by which the learned Additional Sessions Judge directed dropping of a charge u/s 457 of the Indian Penal Code against one of the accused, Biren Dey, and a separate trial for him u/s 380, LP. Code, in the face of the order of commitment for trial under sections 457 and 380, LP. Code, jointly with some other accused persons. In the course of burglary that took place in the Sootia Police Station on the night of the 14th December, 1951, a sum of Rs. 51,527 belonging to the Sootia Post Office was removed from an iron safe by breaking it open, and during Police investigation, some portion of the stolen money and articles is alleged to have been recovered from the possession of some of the accused persons. The Police, after completing investigation, submitted charge-sheet against 21 persons, out of whom, eight, namely, (1) Biren Dey, (2) Sultan Khan, (3) Khalil Mia, (4) Lalbahadur Goala, (5) Safi Sheikh, (6) Dilmohammad, (7) Nur Ali and (8) Poali alias Abdul Mazid, were committed to the Court of Session for trial, and amongst them, charges under sections 457 and 380, I. P. Code, were framed against accused Biren Dey, Sultan Khan and Guluar Khan, and the other accused were charged under sections 411 and 414. I. P. Code, though we need not be particular about the charges framed against accused persons other than Biren Dey.

Before the Jury were empanelled in the Court of Session, it was con tended on behalf of the accused Biren Dey that he being one of the A.S.I.s attached to the Sootia Police Station, even if he entered into thana office building, where the theft occurred, on that particular night, it could not be said that it amounted to an offence punishable u/s 457, I.P.Code, and the learned Additional Sessions Judge who accepted that contention, observed : It appears that accused Biren Dey was in possession of the thana compound where the occurrence was alleged to have taken place As such, the question of trespass would not arise...... I am inclined to the view that the contention raised on behalf of Biren Dey to the effect that section 457, I.P.C., is not applicable to the facts of the persent case, is a sound one. I, therefore drop the charge against Biren Dey u/s 457, I.P.C..

The learned Additional Judge thought that in consequence of this order, the evidence of Guluar Khan (approver) could not be made avail able to the prosecution for trying accused Biren Dey u/s 380, I.P.Code, because of the bar provided u/s 337, Cr. P. Code, and, as such, directed that there should be a separate trial against Biren Dey with respect to the charge u/s 380, I. P. Code.

The learned Advocate-General appearing on behalf of the Prosecution has contended before us that obviously the learned Additional Sessions Judge misdirected himself in dropping the charge against the accused Biren Dey u/s 457, I. P. Code, at that stage. He further argues that the learned Additional Sessions Judge did not say that there was no material for framing the charge, but on the other hand, he accepted a contention on behalf of the accused that could have been raised at a later stage of the trial. He further contended that this order did not amount even to an amendment or alteration of the charge as contemplated u/s 227, Cr. P. Code, whereas it was only an order that could be said to have been passed u/s 226, Cr. P. Code, which provides that a Judge presiding in a Court of Session may at the start frame a charge, if there was no charge already framed, or add to or otherwise alter the charge, but he could not drop a charge that was already framed. He further argued that whether the accused Biren Dey could be said to have been in possession of the room of the thana building from where the money was removed stealthily; would be a pure question of fact based on evidence, and whether his entry at that particular hour was justified in his official capacity, is another factor that will have to be considered on the basis of evidence, but at that stage, when no evidence was led, the learned Additional Sessions Judge could not have dropped the charge, particularly when he does not say that the evidence on that point is totally absent.

Mr. Lahiri''s second branch of argument is that the separate trial has been ordered only on the assumption that the charge u/s 457, I. P. Code. cannot be maintained. If it be found that the learned Additional Sessions Judge was not competent to drop the charge at that stage, the trial against Biren Dey should proceed along with the other accused persons as they were all committed as a result of the same inquiry, and in connection with the same transaction.

Mr. Chaudhuri, on the other hand, contends on behalf of the accused Opposite Party that admittedly there was no acquittal of accused Biren Dey with regard to the charge u/s 457, I. P. Code, and if the learned Additional Sessions Judge would find evidence against him when the trial is proceeded with, he would be quite at liberty to re-frame the charge and proceed with the trial, and the High Court need not interfere at this stage with regard to this part of the Additional Sessions Judge''s order. His second contention is that the dropping of the charge might amount to an alteration of the charge, as provided u/s 226, Cr. P. Code, and the learned Additional Sessions Judge had ample jurisdiction to do so. The High Court, therefore, need not interfere when the Additional Sessions Judge had discretion in the matter, and in support of his contention he relies on a case reported in AIR 1940 Allahabad 259 (Chhadami v. Emperor) (1) and another case reported in I. L. R. 12 All. 551 (Dwarka Lal v. Mahadeo Rai) (2).

We have considered the contentions raised on behalf of both parties and we are of opinion that the learned Judge ought not to have directed at this stage that the charge u/s 457, I. P. Code, against accused Biren Dey should be dropped. The procedure to be followed by a Sessions Court in this respect is undoubtedly provided by section 226, Cr. P. Code, and it deals with the power of the Judge as to adding to or altering a charge or framing of a new charge under circumstances prescribed therein. None of the sections provides for dropping a charge by the Sessions Court--whereas section 215, Cr. P. Code, lays down that once a commitment is made by a competent Court, it can be quashed only by the High Court. A charge can, however, be dropped by the Sessions Court on withdrawal by the Prosecution, and not otherwise. Section 289 (2), Cr. P. Code, provides that if the Court considers that there is no evidence that the accused committed the offence in a case tried by a Jury, the Judge may direct the Jury to return a verdict of not guilty with respect to that charge. Here, evidently this is not the case. The observation on which Mr. Chaudhuri relies in the 12 Allahabad case (1890) runs thus : "No doubt, section 215, Cr. P. Code, declares that a commitment, once made by a competent Magistrate, can only be quashed by the High Court, but there is no express law, as far as I am aware, which prohibits a Court of Session to withdraw a charge framed by itself at the commencement of a trial and which such Court subsequently considers to have been an improper charge." Evidently the facts in this case have not much in common with that case, and here the charge was not framed by the Sessions Court which was rejected at a later stage. The charge was framed in this case by the committing Court on the basis of some materials found on the record, and the learned Judge had no opportunity Of going into the evidence at that stage, nor is the evidence given at the inquiry stage considered to be evidence for the purpose of the Sessions trial unless the same is tendered u/s 288 . Cr. P. Code In these circumstances, the learned Additional Sessions Judge exceeded his jurisdiction in acting upon the said evidence and in considering the charge u/s 457, I. P. Code not to be materially substantiate or in holding that it was inappropriate Therefore, in our opinion, the order directing the dropping of the charge u/s 457, I. P. Code, was illegal and the said charge should be restored. In view of the fact that the charge u/s 457, I. P. Code remains, there is no sufficient reason for a separate trial for the accused Biren Dey. The further fact remains that in this case the Jury would be the Judges of facts and it will be for the Jury to decide as to whether there would be sufficient evidence to substantiate the charge or not, and in this view also the learned Additional Sessions Judge could not drop the charge at this stage. The case relied on by the learned Additional Sessions Judge- Chhadami Vs. Emperor, (1) does not support the order passed by the learned Additional Sessions Judge nor the stand taken by him. The separate trial was directed on the basis that there would be no charge u/s 457, I. P. Code, but since the said charge is restored, we direct that there should be a joint trial of the accused along with the other accused persons under sections 457 and 380, I. P. Code, on the basis of the commitment.

The Rule and the Appeal are disposed of accordingly.

It has been pointed out to us by Mr. Chaudhuri, the learned counsel for the accused, that the trial has been long delayed and we desire that the trial should be finished as expeditiously as possible.

Let the records be sent down immediately.

Sarjoo Prosad, C.J.

I agree.