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Emperor Vs. Sidramaya Ghannaya Kudal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 241 of 1917
Judge
Reported in(1917)19BOMLR912; 43Ind.Cas.321
AppellantEmperor
RespondentSidramaya Ghannaya Kudal
Excerpt:
.....by sessions judge unfavourable to complainant-application to expunge the remarks.;a sessions judge, in convicting accused persons, passed strictures on the complainant, a police officer, as a result of which he was dismissed from service. he, thereupon, applied to the high court to delete the remarks from the judgment of the sessions judge:-;dismissing the application, that it would he an extraordinary exercise of powers of the high court, assuming that it possessed them, to order that the remarks complained of should be deleted. - - he has, however, entirely failed and as a last resort prays us for this relief. but as far as we can see the sole ground of complaint upon which this petitioner can rely is that the public prosecutor was not allowed to reargue the question..........his superiors that in writing the passage which has been so constantly referred to, the sessions judge went beyond what was really essential to the purposes of his argument and really expressed an opinion of his own on the evidence which had not been expressed at any rate in definite terms by the magistrate who heard the witnesses and tried the case. if that way of putting the matter will be of any service to the applicant he is at liberty, so far as i am concerned, to make use of it. but though the sessions judge expressed an opinion on this particular point which it was not essential for the purposes of his argument to express in the terms he used for he might have put it that it was not proved that the applicant went to the house for an unlawful purpose-and though the trying.....
Judgment:

Beaman, J.

1. This application raises a novel point. The petitioner, formerly a police officer, according to his own case, was deputed to investigate a charge against one Rudrappa for disposing of his minor daughter Huchi for purposes of prostitution, under Section 372 of the Indian Penal Code. In the course of his investigation he says that he obtained information that one Annappa was to visit the girl Huchi who had by that time attained her majority and that in consequence he went to the house then occupied by herself and her mother in the middle of the night. There he alleged that he was set upon by the accused who confined him in a room and when he escaped caught him, assaulted him and dragged him back and further confined him. He charged all the accused persons under Sections 342 and 353 of the Indian Penal Code.

2. It is obvious that in order to establish the charge under Section 353 the prosecution would have to show that the petitioner, when attacked, was acting in the discharge of his duty. The trying Magistrate held that this was not proved. The defence was that the accused persons detected the petitioner in the house at the dead of night bent upon the commission of an offence. That was not perhaps their first defence but it appears to have been that part of it on which they most relied during the later stages of the trial. This again was held not proved and the trial Magistrate convicted the accused under Sub-section 342 and 352 instead of under Section 353.

3. The accused persons appealed to the Sessions Judge. The petitioner's complaint here is that he was not allowed in that Court to prove that he went to Huchi's house that night on duty. The learned Sessions Judge, finding that the accused had been acquitted under Section 353, very naturally and very properly told the Public Prosecutor that he did not desire to hear him argue that part of the prosecution case. He still, however, had to consider the defence of the accused, viz., that the petitioner had gone to the house in order to commit some offence therein. It is therefore very clear that the object with, which the petitioner went to Huchi's house that night was a fact substantially in issue and one which the Sessions Judge was bound to consider and upon which he had to come to a conclusion. He again found that the allegation of the accused that the petitioner went to the house with the intention of committing some offence was not proved, but he remarked in the course of his judgment that on a perusal of all the evidence he could not doubt that the petitioner went to the house to have sexual intercourse with Huchi. The result was that the Sessions Judge confirmed the convictions and sentences appealed against.

4. That was in the year 1915. The petitioner's present complaint is that owing to the conclusion reached by the learned. Sessions Judge that the petitioner had gone to the house in order to have sexual intercourse with Huchi and the expression of it in the learned Sessions Judge's judgment he has been dismissed from the police and suffered very serious damage and grievous wrong. He accordingly applies to us under Section 439 to delete the passage of which he complains from the judgment of the learned Sessions Judge. We need not dwell upon the time which has elapsed, because we may accept the petitioner's explanation that that has been occupied in endeavouring to exculpate himself in the eyes of his departmental superiors. He has, however, entirely failed and as a last resort prays us for this relief.

5. On the face of it this is a ground of the utmost rarity if indeed it has ever been suggested before, for the exercise of our revisional powers under Section 439. When we granted a rule, we expressed serious doubts whether we had any jurisdiction but left that point to be argued on the rule.

6. It has been urged on behalf of the petitioner that this Court has jurisdiction under Section 439 and Section 423, Clause (d). Under Section 439 the Court has all the powers conferred upon a Court of Appeal by Section 423 and amongst those powers Clause (d) confers powers upon appeal Courts to make any amendment or consequential or incidental order, they may see fit. It is a matter of very considerable doubt whether what we are asked to do on this rule really falls within the scope and intention of Clause (d) of Section 423. Without expressing any definite opinion upon that question it is sufficient to state the point as one which has been raised and argued before us and might upon a more suitable occasion need further consideration and decision. In the present case, however, bearing in mind the facts which have already been set forth, we do not see how the petitioner can put the merits of this application higher than could a convict who had been found guilty upon an appreciation of evidence. It is true that it cannot be said with strict accuracy that there is a concurrent finding of both Courts upon the question of fact ' witk what object did the petitioner go to Huchi's house that night?' The trial Magistrate contents himself with holding it disproved that the petitioner went there on duty and further that he was not there with the object of committing any offence. The Sessions Judge goes further and on a consideration of all the evidence gives his opinion to be that the petitioner undoubtedly went to the house to visit the prostitute Huchi. Now assuming that that had been the ground of a conviction and that the person convicted had been dissatisfied, would the facts have warranted us in interfering in the exercise of our revisional powers Speaking most generally this Court is reluctant to exercise those powers where a question of fact has been answered upon an appreciation of evidence and very rarely indeed where there are concurrent findings. Here although, as I have said, the findings are not strictly speaking concurrent, when we read the trying Magistrate's judgment, there can be no doubt but that his view was substantially the same as that of the Sessions Judge. Thus where this Court would be extremely reluctant to interfere in the case of a person convicted and sentenced to imprisonment, we are asked to do so in the case of a complainant whose complaint has been held proved, but whose conduct has been animadverted upon in the one point which he now makes the ground of this application. Doubtless were the case one in which we were convinced that the question of fact had been wrongly answered and that otherwise irreparable injustice had been done, we should have had to concern ourselves very deeply with the question of jurisdiction. For then although the case would have been very unusual in its results, it would have been closely analogous to the common class of cases in which this Court does interfere to correct otherwise irreparable injustice. But as far as we can see the sole ground of complaint upon which this petitioner can rely is that the Public Prosecutor was not allowed to reargue the question of the object with which the petitioner went to the house that night for the purposes of making good a charge under Section 353. Although he was not allowed and certainly could not have been allowed, to argue this matter substantively in his own favour, as against the theory upon which the accused based their defence, it must have been by implication at any rate argued and considered before that defence could have been dismissed. We can entertain no doubt but that it was fully present to the mind of the learned Sessions Judge-and that every consideration bearing upon it and legitimately to be drawn from the evidence was duly weighed before he wrote the sentence of which the petitioner complains. That being so, we do not feel that there are any real merits in this application, or that even if we had jurisdiction, to make such an order as that which we are asked to make we ought to do it.

7. Upon that point it is only necessary to add that there is no provision in the Code empowering High Courts to direct Subordinate Courts to delete any passage in a judgment which has once been duly signed and delivered. We are told that a case of the kind has occurred in Calcutta and that the Calcutta High Court directed its own Registrar to delete certain passages of which it disapproved in the judgment of the Sessions Judge. The grounds for such action were obviously altogether different from those upon which the petitioner has pressed his prayer upon us. We have not looked into that case, but doubtless it would be found that the passages which the Calcutta High Court ordered to be deleted were of a scandalous character and even so the mode adopted by the High Court of correcting that impropriety was one which it probably considered itself empowered to adopt in virtue of its inherent jurisdiction as a supreme controlling judicial authority. We are also referred to a case which occurred in 1904 in this High Court in which a pleader appears to have complained to a Bench consisting of the Chief Justice and Aston J. of disparaging remarks made in a Presidency Magistrate's judgment. The learned Judges appear to have entertained no doubt that they had jurisdiction, if the case were otherwise a proper one, to deal with unjustifiable remarks of that sort in the judgment of a Court subordinate to this High Court. The order they actually made, however, was very different from that which we are asked to make here and the circumstances of the case were altogether different. It may be doubted whether when once a Magistrate or a Sessions Judge has signed a judgment, he could, upon any further representation, alter or review it even upon a direction to do so by this High Court. Section 369 of the Criminal Procedure Code is peremptory. Had we therefore felt that there was any need for us to interfere on the ground that otherwise irreparable injustice would have been done, probably our only course would have been to reopen this question of fact as a separate independent question and come to our own decision upon it upon the merits. That I believe has never yet been done at the instance of one who has not been convicted and sentenced in the exercise of our revisional powers under Section 439 and before making a precedent of that kind we should have to be satisfied that the case was exceptionally strong and no other means could possibly avert a grave miscarriage of justice. Here we see no reason to apprehend any such consequences and we think that this rule ought now to be discharged.

Heaton, J.

8. I agree that the rule ought to be discharged. Whether the particular passage in the judgment of the Sessions Judge which is objected to has really had so damaging an eft'eet upon the applicant as we are told, is a matter about which I do not feel quite certain. However it was open-no doubt is still open-to the applicant to represent to his superiors that in writing the passage which has been so constantly referred to, the Sessions Judge went beyond what was really essential to the purposes of his argument and really expressed an opinion of his own on the evidence which had not been expressed at any rate in definite terms by the Magistrate who heard the witnesses and tried the case. If that way of putting the matter will be of any service to the applicant he is at liberty, so far as I am concerned, to make use of it. But though the Sessions Judge expressed an opinion on this particular point which it was not essential for the purposes of his argument to express in the terms he used for he might have put it that it was not proved that the applicant went to the house for an unlawful purpose-and though the trying Magistrate had not expressed so definite an opinion, yet the opinion' expressed by the Sessions Judge was relevant to the matter which he was considering and he was driven-must have been driven-by the arguments to which he had to listen to express an opinion in some form as to the purpose for which the Jamadar went to the house in the middle of the night. As that is the state of things it seems to me that it would be an extraordinary exercise of our powers, assuming that we possess them, to order that the passage complained of should be deleted from the judgment.

9. That being so, it seems to me we must decline to interfere.

10. On the question whether we have power to delete passages from judgments of inferior Courts, I do not wish at present to express any definite opinion.

11. I agree that the rule should be discharged.


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