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Krishnaji Babacharya Mahuli Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. for Revn. No. 461 of 1952
Judge
Reported inAIR1953Bom33; (1952)54BOMLR808; ILR1953Bom76
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 210, 213 and 215; Indian Penal Code (IPC), 1860 - Sections 34, 409, 467 and 477-A
AppellantKrishnaji Babacharya Mahuli
RespondentThe State
Appellant AdvocateA.A. Mandgi, Adv.
Respondent AdvocateK.S. Daundkar, Asst. Govt. Pleader
Excerpt:
.....r. 201, not followed.;it is not the duty of the public prosecutor to lead all evidence before the committing magistrate, but he must lead and it is his duty to lead sufficient evidence which would make it possible for the magistrate under a. 210 of the criminal procedure code, 1898, to be satisfied that there are sufficient grounds for committing the accused for trial to the sessions.;it is for the magistrate to weigh the evidence, and it is open to him if the evidence is worthless not to waste the time of the court of session by committing the accused. the magistrate should not play the role of the jury. it is not for him to consider whether the conviction is probable. if the conviction is possible at all on the evidence led, it is the duty of the magistrate to commit the accused..........cartman to accused l and these are exhs. 1-d and 1-e, and the alterations are that instead of 27 bags, 43 bags are shown as having been despatched by the jai hind mills. the books of the jai hind mills also showed that 43 bags were despatched from the jai hind mills, but the government godown only received 27 bags and therefore the accused were charged with having misappropriated 16 bags and also for making alterations in the two despatched notes exhs. 1-d and 1.-e.(3) now, the question is whether there is any evidence at all which would justify the committing magistrate in holding that there are sufficient grounds for committing the appellant to the sessions. it is the case of the prosecution itself that when the alterations were made on 7-10-1949, accused l was not present and that.....
Judgment:
ORDER

[1] The Additional Magistrate, First Class, Belgaum, committed four accused to stand their trial at the Court of Session under Sections 409, 467 and 477A, Penal Code read with Section 34, Penal Code, Accused 1 has come in revision against the order of committal and prays that the order be quashed.

[2] The prosecution case was that accused 1, was the godown keeper of a Government godown at Shahpur. Accused 2 was working as an accountant under accused 1. Accused 3 was Government Milling Clerk in the Jai Hind Mills who was looking after the milling of rice, sent to that mill by Government. Accused 4 was a clerk of the mills. The practice followed by Government with regard to the milling of rice was this. Paddy was sent to the mills and after the paddy had been turned into rice it was sent by the mills to the Government godown in carts and the clerk attending to this work in the mills used to write out a despatch note with three duplicates. The original was kept in the mills and the three duplicates used to be given to the cartman who used to carry the rice. The cartman used to take the signature on these despatch notes from the godown keeper or the accountant. He used to keep one of these with himself and the other two used to be given to the godown keeper and the godown keeper used to keep one for the records of the godown and the other used to be sent to the Civil Supplies Department later on. With regard to the method of keeping accounts, two registers were maintained which have been described as part II-A and part II-B. In one register, as soon as the rice was received, a note was made of the receipt, and in the other register, Part II-B, the total received in the course of the day was entered. According to the prosecution the offence took place on 3-10-1949, and this is what happened on that day. Twenty seven bags of rice were sent pay the Jai Hind Rice Mills and these bags were given to a cartman who is Exh. 2 to be taken in his cart to the Government godown. The cartman carried these 27 bags in two trips. He carried 16 bags in the first trip and 11 bags in the second trip. As usual he was given three duplicate despatch notes. Accused 2 was not at the godown when the 16 bags were brought but he was there when the other lot of 11 bags were brought, and accused l signed all the three despatch notes. He gave one of them to the cartman and handed over the other two to accused 2 for the record. An entry of these 27 bags was also made in part II-A. On the same day the godown received a further quantity of 16 bags from Prakash Mills and an entry in Part II-B shows that on that day 43 bags in all were received. The prosecution case is that on 7-10.1949, accused 3 in conjunction with accused 2 made an alteration in the two receipts which had been given by the cartman to accused l and these are Exhs. 1-D and 1-E, and the alterations are that instead of 27 bags, 43 bags are shown as having been despatched by the Jai Hind Mills. The books of the Jai Hind Mills also showed that 43 bags were despatched from the Jai Hind Mills, but the Government godown only received 27 bags and therefore the accused were charged with having misappropriated 16 bags and also for making alterations in the two despatched notes Exhs. 1-D and 1.-E.

(3) Now, the question is whether there is any evidence at all which would justify the Committing Magistrate in holding that there are sufficient grounds for committing the appellant to the Sessions. It is the case of the prosecution itself that when the alterations were made on 7-10-1949, accused l was not present and that the alterations are in the handwriting of accused 3 and they were made with the assistance of accused 2. It is further in evidence that accused l himself made a complaint when he discovered the alterations made-in the despatch notes to his superior officer. The learned Magistrate has referred to the case of accused l only in one sentence and this is what he says:

'Hence, after Exhs. 1-D and 1-E came to the charge of accused 1 and 2, it was rather difficult for anyone to add something to the contents of Exhs, 1-D and 1-E unless with the consent of accused 1 or accused 2.'

It is difficult to understand how accused No. l or accused No. 2 can be alternatively charged with the offence. It is also difficult to understand how the Magistrate comes to the conclusion that there is any evidence suggesting the consent of accused No. 1 to the alteration, especially as, as I just pointed put, the case of the prosecution itself is that the godown keeper accused No. 1 was absent when the alterations in Exs. 1-D and l-E were made. I have asked the Assistant Government Pleader to point out to me any evidence, even a tittle of evidence, on the record which would go to show that accused No. 1 Was privy to the alterations being made in EXS. 1-D and 1-E, and I have not been pointed out any such evidence on the record. All that Mr. Daundkar could do was to fall back upon a decision of this Court in Emperor v. Suleman Ibrahim, 13 BOM. L. R. 201. There Chandavarkar and Heaton JJ. held that an order of committal to the Sessions Court cannot be quashed by the High Court on the ground that there is no evidence in the Committing Magistrate's Court's record to sustain the charge. The committal can be quashed on a point of law only. With very great respect to this division bench, the proposition seems to be startling. In the judgment of Chandavarkar J, it is pointed out (p. 202):

'...It may be that the prosecution may have evidence to offer in support of the charges in question in the Sessions Court, independently of the evidence recorded by the committing Magistrate, assuming that the witnesses examined before that Magistrate have said nothing with reference to the offences under those charges. The responsibility is that of the Public Prosecutor; and if the Public Prosecutor thinks that the case ought to he tried and that he ought to have an opportunity of proving those charges, we cannot say that the order of committal ought to be interfered with by this Court at this stage.'

Again, with very great respect the learned Judges seem to have been thinking more of the responsibilities and rights of the Public Prosecutor than of the rights of the accused. The decision goes to this length that it is open to the Public Prosecutor not to lead any evidence against the accused, and if the Magistrate commits a case to the Sessions without any evidence, the High Court cannot interfere because the Public Prosecutor may take his chance against the accused in the Sessions Court. As I said before, again with respect, it is a startling proposition to lay down that an accused can be dragged to the Sessions trial when there is no evidence at all before the Committing Magistrate to commit him to the Sessions.

[4] Now, I think the principle on which a com-mittal order can be made is now well settled by this Court. It is perfectly true that it is not the duty of the Public Prosecutor to lead all evidence before the Committing Magistrate, but he must lead and it is his duty to lead sufficient evidence which would make it possible for the Magistrate under Section 210 to be satisfied that there are sufficient grounds for committing the accused for trial to the Sessions. I fail to understand how any Magistrate can be satisfied that there are sufficient grounds for committing an accused for trial when there is no evidence at all against the accused. If there is evidence, then it is for the Magistrate to weigh that evidence, and even there our Court has gone to this length that it is' open to the Magistrate if the evidence is worthless not to waste the bime of the Court of Session by committing the accused. It is true that the Magistrate should not play the role of the jury. It is not for him to consider whether the conviction is probable. If the conviction is possible at all on the evidence led, it is the duty of the Magistrate to commit the accused to Sessions. But the conviction must be possible, and I cannot understand how any jury in the world or any Sessions Court in the world can possibly convict the accused without any evidence. Therefore, in my opinion, the fact that there is no evidence at all against the accused is a question of law on which the High Court can certainly interfere and quash the committal order. If any authority was needed for this proposition, it is to be found in the decision of the Privy Council in Harendra Lal Roy Chowdhuri v. Sm. Hari Dasi Debi, 41 Ind. App. 110 where their Lordships emphasise that according to the well-known principles of our law a decision that there is no evidence to support a finding is a decision of law. As I am satisfied in this case that there is no evidence at all against accused No. 1, the order of the learned Magistrate cannot be sustained.

[5] I would, therefore, quash the order of committal passed by the learned Magistrate against accused No. 1.

[6] Committal quashed.


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