1970 P Cr (PLP)

The occurrence took place at broad day‑light at about 3 p.m. Amongst the eleven accused six were borka‑clad women. The civil Court peon Abdul Gafur was accused No. 1 in the F. I. R. Out of the ten witnesses examined by the prosecution, P. Ws. 1, 3 and 5 support the prosecution case. P. Ws. 1 and 3 are sons of P. W. 5 Faizur Rahman Chowdhury. Other witnesses, namely, P. Ws. 2, 4 and 6 to 9 do not corroborate the above three witnesses on material particulars. Their evidence show that the accused persons went to the house being armed with a writ of delivery of possession and a distress warrant to take possession of the house in question. P. Ws. 1, 2, 3, 4 and 8 admit the presence of the civil Court peon on the spot at the time of occurrence. P. Ws. 2, 6, 8 and 9 depose to the effect that a prayer for time to vacate the house was made and the peon allowed them one hour time to remove their articles and surrender possession to the decree‑holder. The writ of delivery of possession Exh. A and the distress warrant Exh. B support the defence case. The reports of the peon Exhs. A(1) and B(1) show that when the peon began giving delivery of possession of the house to the decree‑holder, the Officer‑in? Charge, Kotwali P. S. with a police party came to the spot, took away the writs from the peon and arrested them all. P. W. 10, the Officer‑in‑Charge, Kotwali P. S. states that he went to the spot on a phone message from the son of. the Governor from the Government House. ??????????? Thus taking an over‑all view of the evidence and materials on record, it seems that the prosecution case is highly improbable and doubtful, that the evidence in the case is very unsatisfactory and that the chance of conviction of the accused on such evidence is very poor. It transpires from the evidence that accused Majibur Rahmaa with his people accompanied the civil Court peon Abdul Gafur who had been deputed by the Court concerned with a writ of delivery of possession and a distress warrant to take over posses?sion of the house in question to the decree‑holder Hamidan Nessa and attach the movables of the judgment‑debtor Faizur Rahman and another. The judgment‑debtors not being present, the civil Court peon disclosed his identity and explained the contents of the writs to a son of the judgment‑debtor Faizur Rahman and asked him to remove the movables and thereupon surrender possession of the house. He gave them one hour time to comply but as still possession was not delivered the peon began giving delivery of possession of the house to the decree‑holder when the Officer‑in‑Charge, Kotwali P. S. with a party came to the spot, took the writs from the peon and then arrested the accused persons and also the peon himself. Thus the evidence on record shows that the accused went there not with the intent to commit theft, dacoity or any other offence but to take possession of the house and attach the movables lawfully on the basis of the writs Exhs. A and B with the help of the civil Court peon. The first essence of the offence of dacoity is robbery which is nothing but an aggravated force of theft or extortion. Dacoity has been defined in section 391 of the Penal Code whereas robbery has been defined in section 390 of the said Code. Section 378 of the Penal Code defines theft which runs as follows :‑ "Whoever, intending to take dishonestly any movable pro?perty out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft." A careful perusal of sections 378, 390 and 391 of the Penal Code will show that "intention to take dishonestly any movable property" is the common essence of alt the offences of theft robbery and dacoity. In all the three offences of theft, robbery and dacoity "a dishonest intention of taking" is a sine qua non. In the instant case, the admitted facts that the occurrence took place in the broad day‑light at 3 p.m., that the party accompanied the civil Court peon armed with a writ of delivery of posses?sion and distress warrant and that six out of the eleven accused were borka‑clad women, d) not lead to the inference that the accused persons entered in to the house with the dishonest intention of taking away the movables or looting the articles. In my opinion, the facts and materials on record do not attract the ingredients of section 395 of the Penal Code. It is true that the learned Magistrate in discharging his func?tion under section 209 of the Code of Criminal Procedure has slightly discussed the evidence for and against the accused and recorded his findings on facts. He did not, however, seem to have over‑stepped his limit. Whatever he did, he did to reach to the conclusion that no prima facie case of dacoity had been made out against the accused persons. In view of the peculiar nature of the case, it was perhaps necessary for him to discuss their evidence to some extent to come to such a clear finding but for that it cannot be said that he acted illegally or beyond jurisdiction. The function of the Magistrate in an enquiry under Chapter XVIII of the Code of Criminal Procedure is very limited. In discharging that limited jurisdiction he should not weigh the evi?dence and circumstances of the case for and against, for the purposes of finding out the guilt or otherwise of the accused, a task which is left to the Court of Sessions. But he cannot also perform hi function completely shutting out his eyes to the evidence on records. It is true that he is not to weigh the evidence in the yard‑stick of a scale but he cannot at the same time ac blindly without testing the evidence to some extent. H cannot assume the function of the trial Court or trespass into the province of the Court of Sessions but he cannot also pass frivolous matter to the Court of Sessions. He has certainly a duty to see whether the facts make out a prima facie case and whether they are sufficient ground to commit the accused for trial. If from the materials on record it is apparent that the prosecution case is absolutely frivolous or has no leg to stand on, I think, it will b improper for him to pass it to the Court of Sessions as there would be little chance of conviction in such a case. In each case, the question shall be decided by its own facts. It ma sometime be risky to pass a frivolous case to the Court of Session without carefully appreciating the evidence on records. Section 209, Cr. P. C. empowers the Magistrate to discharge the accused if there are not sufficient grounds for committing them to the Court of Sessions. To reach to the conclusion that there are not sufficient grounds for commitment, the Magistrate can of necessity appreciate the evidence in his limited sphere. But in doing so, he cannot travel beyond his jurisdiction or trespass into the province of the Court of Sessions. However, taking an over all view of the entire materials on record if the Magistrate is convinced that the evidence is most unsatisfactory or un?worthy of credit, that the case bristles with improbabilities and the chance of conviction on such evidence is very poor and no Court or jury can reasonably be expected to convict the accused on the poor materials on record, he may discharge the accused instead of sending the case to Sessions as it would be a sheer wastage of public time and money to pass on such a case to the Court of Sessions. In this connection we may profitably refer to some observations made by the Supreme Court of Pakistan in the case of Mariballav Saha Roy v. Gipiballav Staha and another (11 D L,R 394 (S C)). In that case Shahabuddin, J. at page 397 held:- "The preliminary enquiry is obviously intended to prevent false and frivolous cases occupying the time of the Sessions Court and innocent persons being put to the trouble and expense of undergoing a Sessions trial. This is evident from the fact that section 209 makes it obligatory on the Magistrate holding the enquiry to discharge the accused in case there are not suffi?cient grounds for committing him for trial. To discharge this function, the Magistrate has necessarily to appreciate the evi?dence. But he must bear in mind that the purpose of inquiry is only to determine if there are sufficient grounds for making the accused stand a trial and not to decide about his guilt. He should take care to see that he does not trespass into the province of the Sessions Court which alone can try the accused. It is not easy to draw the line between the duty of the Magis?trate and that of the Sessions Court in all cases." The learned Judge in the case after considering several case‑laws again observed at page 399 as follows :‑ "A Magistrate holding the preliminary enquiry has power to sift and weigh evidence only for the purpose of determining whether or not it is fit case for committal and not for deciding about the guilt of the accused, that no bard and fast rules can be laid down regarding the distribution to be made between the duty of a committing Magistrate and that of the Sessions Court, but the test indicated above is a safe guide viz., that if there is on the evidence even a possibility of convic?tion the accused should be committed for trial though the Magistrate thinks that a conviction is not probable or the matter is not free from doubt, but that he should discharge the accused if on the evidence he comes to the conclusion that no Court or jury could reasonably be expected to convict the accused." On this point Rahman, J. (as his Lordship was then) in the case of Radhaballav Das v. Santosh Chandra Saha (P h D 1960 Dacca 371) observed at page 375 as follows :‑ "I find that the current of opinion in almost all the High Courts is that the Magistrate, even when so holding such an enquiry in a case exclusively triable by a Court of Session, is not a mere automation and is not bound to commit a case to the Sessions even where he is convinced, as the Magistrate was in the present case, that it would be a sheer wastage of public time and money to pass on the case to the Court of Session, for the accused stood no chance of conviction upon the said evidence. It is his business, to my mind, to see whether the prosecution has adduced such evidence as really, on the face of it, is abso?lutely incredible or unworthy of credit. It is not his duty to form a final conclusion on the evidence, as for example, where there is a serious doubt as to the weight or quality of the evidence, he should not take upon himself the task of resolving that doubt but should leave that to be done by the Court of Session, his function being merely to see whether the evidence raises a strong or probable presumption of guilt. But, in a case where the important witnesses appear to be totally unworthy of credit and the case bristles with improbabilities, I think it is rightly his duty to discharge the accused. The case of Mazharul Huq v. Ishaque Sardar and others (P L D 162 S C 480) referred to by the learned Additional Sessions Judge, Dacca followed the principles laid down in 11 D L R 394 (S C). In this case also Cornelius, C. J. amongst others, at page 486 observed thus. "A case is conceivable where the prosecution evidence falls altogether, and quite plainly, to make out a prima facie case, and there of course, the Magistrate would discharge." Applying the above tests to the present case and considering the, facts, circumstances and evidence as indicated earlier, I think that' the learned Magistrate was perfectly justified in discharging the accused as there was absolutely no chance of conviction in the case and as it would be a sheer wastage of public time and money to pass on such a case to the Court of Sessions. For the reasons stated above, the order of the learned Addi?tional Sessions Judge directing commitment of the accused persons to the Court of Sessions to face trial under section 395, P. P. C. cannot be supported on facts as well as on law. No purpose will be served by committing the accused persons to the Court of Sessions. The order of the learned Additional Sessions Judge is, there?fore, liable to be set aside and it is accordingly set aside. The Rule is made absolute. Before parting with the case, I must observe that the conduct of P. W. 10 S. I. Mozammel Huq, Officer‑in‑ Charge Kotwali P. S. is highly reprehensible. He has flouted the writs of the civil Court quite arbitrarily. His high handedness calls for some action. Rule made absolute