P L D 1957 Dacca 142 (PLP)

ISPAHANI, J.‑

This is an appeal by the accused person who was placed on trial before the learned Assistant Sessions Judge, Noakhali, to answer the following charge under section 195 of the P. P. C. "That you on 22nd May 1952, at Feni in the course of enquiry under Chapter XVIII of the Criminal P. C. in G. R. No. 47 of 1952 (T. 120 of 1952) in a case under section 397, P. P. C., against Bankim and Chitta before Mr. R. A. Khan, Magistrate, 1st Class, stated in evidence `I heard two reports of gun and came to the house of Sushil. I saw accused Chitta and Harendra and Bankim by my torch on my way about 200 cubits off from the house of Sushil to the south. Accused Chitta had a lathi in hand and the rest were empty‑handed, and I saw Chitta at a distance of 12 cubits which statement you either knew or believed to be false . . . . " The assessors found the accused not guilty under that section, but 3 of them gave him benefit of doubt under section 193 and one found him guilty under that section. The learned Judge convicted the appellant under section 193 and sentenced him to rigorous imprisonment for 4 years. The prosecution case is as follows: On 31st January 1952, at 11‑45 a.m., Sushilchandra Mazumdar lodged an inform ation at the Feni police‑station alleging that in the previous midnight about 10 dacoits broke open the door of his dwelling hut, assaulted him and his wife Ranibala, fired a gun at them and unlocked his wooden chest and took away cash and ornaments worth Rs. 800 and out of the dacoits he recognised Bankimchandra Dutta, Chittaranjan Dutta, Harendrakumar Dutta and Fazal Pandit as some of the dacoits. He also alleged that other local witnesses also recognised Bankimchandra Dutta and Chittaranjan Dutta while they fled away. On this allegation, a charge sheet was submitted against Bankim chandra Dutta and Chittaranjan Dutta under section 397 of the Pakistan P. C. G. R. Case No. 47/52 was started Mr. R. A. was transferred to the Additional Sessions 120 Judge for disposal who rejected the petition and confirmed the order of the Magistrate. At the same time he directed the Sub‑Divisional Magistrate of Feni to take action against the prosecution witnesses including the appellant before us under sections 192 and 193 of the Code. Mr. S. M. Obaidullah, the then Sub- Divisional Magistrate, Feni, lodged a complaint against the appellant and some others, who are appellants in Criminal Appeals Nos. 447, 448 and 449 under section 193 for giving false evidence in the said case and took cognizance s himself and transferred it to Mr. M. A. Qasmi, Magistrate, 1st class; for disposal. Mr. Qasmi after a preliminary enquiry sent up the accused to the Court of Sessions to stand trial under section 195 for giving false evidence on 22nd May 1952, before Mr. R. A. Khan in the case mentioned above. The accused pleaded not guilty and his case was that there was a dacoity at the house of Sushilchandra Mazumdar on the night in question and what he stated before Mr. R. A. Khan was true. He further contended that the complaint against him was incompetent. The learned Judge convicted and sentenced the appellant, as already stated. Mr. T. Talukdar with Mr. R. C. Talukdar appeared on behalf of the appellant and the State was represented by Mr. K. Shamsul Huda. Mr. Talukdar firstly argued the question of law before us, namely, that the complaint not having been lodged either by Mr. R. A. Khan, his successor or by the Sessions Judge to whom he is subordinate, the learned Judge ought to have given effect to the contention of the pleader for the appellant that the complaint was incompetent and the learned Judge seriously erred in holding that Mr. Chaidulla, the Sub -Divisional Officer, was the successor‑in‑office of Mr. R. A, Khan. In other words, it has been argued that, the conviction of the appellant being based on an incompetent and illegal complaint, the whole proceeding against him and the convic tion based thereon cannot be sustained. Our attention has been drawn to the provisions of clause (b) of subsection (1) of section 195 of the Code of Criminal Procedure, which runs as follows: "No Court shall take cognizance of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195. 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate." Reference was made to subsection (1) of section 559 of the code of Criminal Procedure which is to the following effect: "Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor‑in‑office. G. R. case No. 47/52 was started on the information lodged by Sushilchandra Mazumdar 120 T before the police in which he implicated Bankimchandra, Chittaranjan, Harendrakumar and Fazal Pandit as some of the dacoits who‑ had committed dacoity in his house. In the enquiry before Mr. R. A. Khan, it was found that the case brought against the accused persons was maliciously false and the accused persons were discharged. The Magistrate also asked Sushilchandra Mazumdar to show cause why lie should not be prosecuted under section 211 of the P. P. C. Sushilchandra Mazumdar thereupon moved the Sessions Court against that order and his petition was disposed of by the Additional Sessions Judge, who confirmed the order of the Magistrate. At the same time, he directed the Sub‑Divisional Magistrate, Feni, to take action against all the prosecution witnessess including this appellant under sections 192 and 193 6f the P. P. C. Thereafter Mr. S. M. Obaidulla, the Sub‑Divisional Magistrate, Feni, filed a complaint against this appellant and others under section 193 for giving false evidence in the case. It is the contention of the learned counsel for the appellant that inasmuch as Mr. Obaidulla was not the successor‑in‑office of Mr. R. A. Khan, the trying Magistrate, he could not lodge the complaint against the appellant and others and the com plaint so lodged is void ab initio and the conviction and sentence based thereon is illegal. On behalf of the appellants in Criminal Appeals Nos. 447, 448, and 449 of 1955, similar argu ments have been advanced. To support his argument, the learned counsel referred us to Nishi Chandra v. The Crown (8 D L R 213), Another accused similarly placed moved this Court in revision against the complaint filed against him by Mr. Obaidullah, the Sub‑Divisional Officer, Feni. On the facts of that case, Rahman, J., held that inasmuch as the complaint filed by the Sub‑Divisional Officer in compliance with the direction of the Sessions Judge and not as a successor‑in‑office of the transferred Magistrate was not a valid complaint in law under section 195 of the Code of Criminal Procedure, the proceedings thereunder should be quashed it was held further that the Sessions Judge, if he had intended to make a complaint, ought to have preferred it himself but he could not make the complaint through the agency of a Magistrate who was subordinate to him. A complaint in respect of an offence mentioned in section 195, Criminal P. C., if it arises in respect of a proceeding before a Magistrate, can only be made on the transfer of that Magistrate, by his successor‑in‑office and none else. Strong reliance was placed on this decision, and we have been asked to acquit the appellant before us having regard to this decision. In our opinion, the decision does not help the appellant. That decision was arrived at on the facts of that particular case. In the present case it has been found on the evidence adduced that Mr. Obaidullah was the successor‑in‑office of Mr. R. A. Khan. Besides it is an admitted fact that the complaint filed against the appellant and others is one under section 476 of the Criminal P. C., and the party aggrieved has a right of appeal under section 476‑B, which was not availed of by this appellant. After the disposal of the, case and after his conviction under section 193, he cannot be heard to say that his conviction under section 193 is not maintainable in law as the complaint filed against him was not made by the successor‑in‑office of the trying Magistrate. We are fortified in our view by the decision in the case of Jabbar Ali and another v. Emperor (A I R 1929 Cal.203), in which Rankin, C. J., and Buckland, J., held that a person who has not appealed against an order resulting in a complaint under section 476 cannot argue before the Magistrate whether the complaint is a good complaint or made by a proper officer or so forth. That decision was followed in Ali Ahmad v. Emperor (A I R 1932 Cal. 545), by Panckridge and M. C. Ghose, JJ. We are, therefore, unable to accept the arguments advanced on behalf of the appellant that he can at this stage agitate the illegality of his conviction before us. As regards the merits of the case, it must be seen if the learned Judge was right in holding that the First Information Report filed by Sushilchandra Mazumdar against Bankim chandra Dutta, Chittaranjan Dutta, Harendrakumar Dutta and Fazal Pandit was false. There is no onus on the appellant to show that a dacoity in fact was committed in the house of Sushil on the night in question. The onus is entirely on the prosecution to show that in fact no dacoity was committed in the house of Sushil on that night and the information filed by him, therefore, is false. We have been taken through thk evidence in the case and the evidence is as follows: P. W. 1 is Bankimchandra, P. W. 2 is Chittaranjan, P. W. 3 is Harendrakumar and P. W. 5 is Fazl‑ur‑Rahman also called Fazal Pandit. All of them were named by Sushil in the informa tion as dacoits who among others had invaded his house on the night in question. The Duttas are the landlords of Sushil as well as the landlords of the appellants. The evidence shows that they have obtained some decrees against Sushil and Sushil on a previous occasion also filed a case against his landlords implicating them in a dacoity case. In that case also the accused were discharged. It has further been established that there are two parties in the village, one headed by Fazlur Rahman to whose party the Duttas belong and another party led by Ali Ahmed Choudhury to whose party Sushil and the appellant belong. Thus there is some enmity between the parties and enmity cuts both ways. The witnesses mentioned above stated that there was no dacoity in the house of Sushil on the night in question and they took no part in the same ana, if there was any dacoity, they would have known of the same. They also denied that the police visited their house as a result of the case filed against them and that they never saw the police in the village during the investigation. P. W. 6 is Abdur Rashid, P. W. 7 is Haridas Goswami. P. W. 8 is Ganeshchandra Bal who are said to be living near about the house of Sushil and their evidence also is to the effect that had there been any dacoity in Sushil's house that night, they, as his neighbours, would have known about it. The prosecution has also examined P. W. 9 Basharat Ali, who was a Sub‑Inspector of Police attached to Feni police -station in 1952. After the first information report was recorded by S. I. Azaharuddin, this witness was sent for investigation and his evidence shows that on two occasions he went to the locality and did not find the accused persons present in their house. He stated in the enquiry before Mr. R. A. Khan that he noticed marks of violence on the door and walls of Sushil's hut His investigation was supervised by the Circle Inspector of Police. He found Sushil in the Feni Hospital with injuries on his person. P. W. 10 is Azaharuddin who recorded the First Information Report filed by Sushil. He submitted charge sheet in the case as ordered by the Superintendent of Police. He took precautions in the case because of the fact that there was failure in the prior dacoity case which was brought to his notice He brought this fact to the notice of the supervising officers. His evidence shows that at the time the First Information Report was filed, Sushil produced before him a fallen tooth, two empty fired cartridges and one live cartridge. Sushil had on his person injuries and he was sent for treatment to the Feni Hospital. Once the Superintendent of Police and the Circle Inspector went to the locality. The S. D. P. O. also went there. The evidence of the police officers shows that they had some materials before them for holding that a dacoity had been committed in the but of Sushil and the investigation made by Azaharuddin was supervised by the superior officers of the police. It is significant that although Sushil had injuries on his person, the doctor who examined him has not been examined in this case and, if he had been examined, his evidence should have shown whether the injuries could be termed self‑inflicted or not. Why the doctor was not put in the witness box is not known. His evidence would have been most material in the case. Thus as against the evidence of the witnesses who say that there was no dacoity, there is the positive evidence of the police officers that there were signs of dacoity at the locality, injuries on the person of Sushil and his wife and these facts must have led the police officers to hold that a case of dacoity had been established and, as a result thereof, charge‑sheet was submitted against Bankim chandra and Chittaranjan. In the enquiry before Mr. R. A. Khan, this appellant deposed supporting the case of dacoity. Having regard to these facts, we are not prepared to hold that Sushil filed an information against his landlords which could be said to be totally false and the appellant gave false evidence before Mr. R. A. Khan knowing or having reason to believe the same to be false. The evidence of the police officers cannot be ignored. They were not declared hostile by the prosecution. In view of all the facts and circumstances of the case, we hold that, at any rate, the case against the appellant has not been proved beyond reasonable doubt and he is entitled to the benefit of doubt. The result, therefore, is that the appeal is allowed and the conviction and sentence passed on the appellant under section 193 of the P. P. C., are set aside. The appellant will be set at liberty forthwith if not required in any other connection. MURSHED, J. ‑

I agree. K. B. A. Appeal allowed.