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Emperor Vs. Yellappa Durgaji Jadhav - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision Nos. 434 of 1928 and 15 of 1929
Judge
Reported in(1929)31BOMLR523
AppellantEmperor
RespondentYellappa Durgaji Jadhav
DispositionApplication dismissed
Excerpt:
.....it will be for the higher court (e. o'gornian on behalf of the second applicant complains that the learned magistrate disallowed his application for certain tippans and travelling allowance bills being produced, as well as certain witnesses being summoned. 13, the magistrate, have been disclosed and it has been urged strongly before us that he is not in exactly the same category as the other accused, but this is a matter well within the cognizance of the sessions judge, who has ample powers both to amend the charges, and if he considers it necessary in the inters est of justice, to try any accused person separately from other-committed jointly with him, and i have no doubt that he will give the point his most careful consideration and that it is not necessary for us to give any direction..........not been found that there was an offender whom the applicant attempted to screen; and(4) that the learned magistrate wrongly disallowed a certain prosecution witness being summoned and examined and certain documents produced on behalf of the first applicant and certain witnesses summoned and examined on behalf of the second applicant.2. under section 215, criminal procedure code, we would not ordinarily interfere with an order of committal unless we were satisfied from the record that there was an illegality in the order. the test, in my opinion, in a matter of this nature is to see from the judgment of the learned magistrate what his findings on the evidence are and whether those findings are capable prima facie of sustaining the charges he has framed and on which the committal to the.....
Judgment:

Mirza, J.

1. These two applications have been heard together, and raise substantially the same points. Both applicants have been committed by the Special Magistrate, First Class, Belgaum, to take their trial before the Sessions Court, Belgaum, the first applicant on charges under Sections 120-B, 161 or 213 of the Indian Penal Code, and the second applicant under Sections 120-B, 161 or 213 and 114 and 219 of the Indian Penal Code. The applications are made under the provisions of Section 215 of the Code of Criminal Procedure to have the committal quashed on the ground of certain illegalities that are alleged. The grounds relied upon seem mainly to be the following;-

(1) that there is a misjoinder of the accused persons, as well aa a misjoinder of charges;

(2) that in the alternative if it is held that there is no misjoinder of the accused, or of charges, the joint trial of the applicants, along with their co-accused in the committal order would seriously prejudice their trial and lead to a miscarriage of justice;

(3) that one of the charges against the first applicant being under Section 213 of the Indian Penal Code, the same is not maintainable in law as it has not been found that there was an offender whom the applicant attempted to screen; and

(4) that the learned Magistrate wrongly disallowed a certain prosecution witness being summoned and examined and certain documents produced on behalf of the first applicant and certain witnesses summoned and examined on behalf of the second applicant.

2. under Section 215, Criminal Procedure Code, we would not ordinarily interfere with an order of committal unless we were satisfied from the record that there was an illegality in the order. The test, in my opinion, in a matter of this nature is to see from the judgment of the learned Magistrate what his findings on the evidence are and whether those findings are capable prima facie of sustaining the charges he has framed and on which the committal to the Court of Session is made.

3. Mr. Murdeshwar on behalf of the first applicant has not been able to point to any part of the judgment of the learned Magistrate which would show that there is any illegality in his order of committal on the charges he has framed. With regard to the question of the wording of the charges and whether there is a misjoinder of the accused, it will be open to the applicants to urge their contentions before the Sessions Court, We have no desire to interfere in a matter, which the Sessions Court would be competent to determine.

4. With regard to the contention that a joint trial might prejudice the accused, that again is a contention, which, if the applicants are so advised, they might urge before the Sessions Court. Mr. Murdeshwar has urged that on the prosecution evidence the first accused is shown to have come on the scene of the alleged conspiracy at a late stage, and even granting that the charge of receiving illegal gratification can be proved against him, that, in itself, would not make him a member of the conspiracy. This is an argument which, in my opinion, might be urged if so advised before the Sessions Court. So also the further contention that the joint trial of the first accused with Messrs. Ring and Moghe who have already been tried and convicted in what is known as the Jugal bribery case might prejudice his trial before a jury.

5. Mr. O'Gorman on behalf of the second applicant supports the above contentions. He has taken us through the record in support of his contention that the evidence against the second applicant is not so full as against the other accused. He contends that the only alleged act from which certain inferences are drawn by the learned Magistrate turns upon an allegation that the second applicant received a sum of Rs. 500 as illegal gratification for delivering a judgment by which he discharged one Algouda who was being tried before him for an offence. This allegation, according to Mr. O'Gorman's contention, is based upon the evidence of an accomplice witness, which requires corroboration. There is some force in Mr. O'Gorman's contention that the joint trial of the second applicant in the company particularly of persons who have already been convicted on a similar charge in a previous trial might prejudice his case with the jury. We do not propose to express an opinion on the point whether such a joint trial is or is not likely to prejudice the case of either applicant with the jury. It is a contention, however, which, if urged before the Sessions Judge, will no doubt be taken into consideration by him.

6. With regard to the third point urged by Mr. Murdeswar, it appears that Algouda was discharged and not acquitted. Whether the charge is one which should stand or should be deleted, is again a matter which the Sessions Court will be competent to decide before the trial commences. It is not necessary, in my opinion, that we should give any decision on the point at this stage.

7. The last point urged on behalf of both the applicants relates to the exclusion of certain evidence which they wanted to adduce before the learned Magistrate. In refusing the application of the first applicant in this behalf the learned Magistrate has given his reasons as follows :-

(1) This application has been made very late almost at the last stage. (Witness was given up by the prosecution on 6|11 and the defence could have made this application earlier);

and (2) even if he is summoned and examined it would be a question of appreciation of evidence and as there are sufficiently strong materials about a prima facie case against the applicant it will be for the Higher Court (e. g. Sessions Court to decide whether the prosecution evidence should be believed or not.

8. This order was made on November 26, 1928. The application, it appears, was made towards the end of the trial. Under Section 208(3) of the Code of Criminal Procedure if an accused person applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so. The learned Magistrate has recorded his reasons for his refusal to accede to the application. The learned Advocate General, on behalf of the opponent, relies on the ruling of the Patna High Court in Saadat Mian v. King-Emperor I.L.R(1926) . 6 Pat. 329 which is to the effect that the Court is not concerned whether the reasons given by the Magistrate would have appealed to any other person or not but has only to see whether the Magistrate has complied with the provisions of Section 208. In the present case, in my judgment, it is not necessary for us to accept this ruling in its entirety. With great respect, I am not prepard to say that the jurisdiction of this Court would be ousted under Section 208 of the Criminal Procedure Code, on the Magistrate recording a reason for his refusal, The reason recorded by the Magistrate should be one which the Court would regard as valid and acceptable. The Court, however, would not interfere in the matter unless the reason recorded by the Magistrate appears on the face of it to be illegal, or untenable. The learned Advocate General has relied on this point also on the ruling of the Madras High Court in The Sessions Judge of Coim-batore v. Kangaya Matitradiyar I.L.R(1912) .Mad. 321 and of the Calcutta High Court in Emperor v. surath I.L.R(1914) . Cal. 608. In the present case there is nothing in the reasons given by the learned Magistrate for refusing the application which could be regarded as illegal or unjust.

9. Mr. O'Gornian on behalf of the second applicant complains that the learned Magistrate disallowed his application for certain tippans and travelling allowance bills being produced, as well as certain witnesses being summoned. The learned Advocate General has called our attention to the evidence given in the case by the witness, Tukaram, Exhibit 150, who stated that no yadis were kept. A yadi is the same as a tippan. With regard to the travelling allowance bills, it is shown that they were produced in Court. The reasons given by the Magistrate for refusing the second applicant's application were, in my opinion, cogent and sound.

10. The rule is discharged.

Murphy, J.

11. The appellants who are accused Nos. 12 and 13 in a case which has been committed for trial to the Sessions Judge at Belgaum, challenge the legality of their commitment and seek to have it set aside. The case is one known as the Satti case of Belgaum, and the applicant, Yellappa Durgaji Jadhav, was the Sub-Inspector of Police employed at that place, and acting as reader to accused No. 10 in the case, who was the Deputy Superintendent of Police. The second applicant was a Mamlatdar and Magistrate, First Class, of the same District, The former is charged under Section 120-B, 161 and 213 and the latter under Section 120-B, 161 or 213 and 114 and 219 of the Indian Penal Code. The commitment has been characterised as illegal on four different grounds but in the case of the first applicant, the first ground put forward is in reality one on the merits and appreciation of the evidence in the case, and I do not think it can be considered in an application under Section 215 of the Criminal Procedure Code.

12. It is next argued in favour of this applicant that since all the offences alleged against him are triable by a Magistrate, he should not have been committed to the Sessions Court, but should have been tried by the Committing Magistrate himself. He is really charged with taking part in a conspiracy, with many other persons who are also accused in the case-a conspiracy which had for its object the taking of bribes from certain persons in connection with a criminal complaint which had been lodged, and, I think, that on these facts, he has been rightly committed to the Sessions Court with the other accused. Though the offences charged against him are triable by Magistrate, some of them are also triable by the Sessions Court, and there is no illegality in so committing him to it.

13. The next point made in favour of this accused is that the charge under Section 213 was unsustainable, as it had not been actually proved that there really was an offender to be screened, and consequently, that the charges framed could not stand. But whether this is really the case or not, we are not at this stage prepared to say, and it will be a defence available to the applicant in the Sessions Court, and I think it cannot now be prejudged.

14. The last two grounds are grounds common to the cases of both the accused-applicants. It appears that in the case of both, applications were made on November 20 for a certain witness to toe called for the defence-in the one case a man who had been summoned for the prosecution and had not been examined by the other side and had been discharged-and in the other, a witness required to contradict the evidence of a witness whose examination had already been concluded. The learned Magistrate rejected both these applications mainly on the ground that they were belated, and it is now contended that this refusal to summon evidence for the defence was contrary to the provisions of Section 208 and an illegality vitiating the commitment. But Clauses (1) and (3) of Section 208 of the Criminal Procedure Code are framed in different terms. By Clause (1) all defence witnesses that may be produced on behalf of the accused must be examined, but where it is necessary to issue process to procure such a witness's attendance, a discretion is conferred by ol. 3, on the Magistrate, to refuse such an application, if he sees fit to do so, and for reasons to be recorded in writing. Their Lordships of the Patna High Court have held in the case reported in Saadat Mian v. King-Emperor (1926) L.R. 6 Pat. 32. I that when the conditions of Clause (3) are complied with, no illegality can be said to have been committed. In this case the reasons have been recorded in writing, and it has been argued that as these are insufficient, an illegality was committed. As I have already stated, the main reason for rejecting the applications was that they were belated. They were made on November 20, and orders on them were passed on November 26, on which day the proceedings went on, and the accused was committed on December 1 last. Though we have listened carefully to all that could be urged on this Murphy J. point, we are unable to find that the rejection here was unreason-able and improper, and I think the commitment cannot be set aside on this ground.

15. The last ground urged and which is also common to both the applications, is that the applicants will be prejudiced if they are tried along with the other accused committed with them. I think it is not possible, nor would it be proper, for us to say at this stage that such would be the case. The facts against accused No. 13, the Magistrate, have been disclosed and it has been urged strongly before us that he is not in exactly the same category as the other accused, but this is a matter well within the cognizance of the Sessions Judge, who has ample powers both to amend the charges, and if he considers it necessary in the inters est of justice, to try any accused person separately from other-committed jointly with him, and I have no doubt that he will give the point his most careful consideration and that it is not necessary for us to give any direction on the point.

16. I think that both these applications should be dismissed and agree with the order proposed.


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