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Emperor Vs. Sher Alam Khan Sahib - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Reference No. 70 of 1933
Judge
Reported inAIR1933Bom494; (1933)35BOMLR1062; 147Ind.Cas.879
AppellantEmperor
RespondentSher Alam Khan Sahib
Excerpt:
.....the trial before him.;the emperor v. girish chunder kundu (1929) 34 c.w.n. 13, f.b. and emperor v. asha bhathi (1913) 15 bom. l.r. 998, followed. -..........proper order here would be that this commitment is quashed and that the magistrate should conclude the trial himself. this reference is, therefore, accepted.8. the papers should go to the trial magistrate for disposal according to these remarks.broomfield, j.9. i agree.
Judgment:

Divatia, J.

1. This is a reference made by the Additional Sessions Judge at Ahmedabad recommending that the committal of the accused to the Sessions Court on a charge for an offence under Section 477 of the Indian Penal Code should be quashed.

2. The accused was charged before the Honorary First Class Magistrate at Ahmedabad under Section 477, Indian Penal Code, for having destroyed documents which were alleged to be valuable security, and the learned Magistrate being of opinion that there was a prima facie case against the accused with regard to the offence charged against him, passed an order committing the accused to the Court of Session for trial under Section 477, Indian Penal Code.

3. The offence alleged to have been committed by the accused consists in his destroying an order of the Court by which the Nazir of the Court was asked to take a document of suretyship from the accused for his being released on bail and the necessary certificate for the solvency of the surety was to be taken. It is this order signed by the Superintendent and addressed to the Nazir that is alleged to have been destroyed by the accused along with two draft affidavits and a certificate given by a pleader.

4. Now, in order that the accused may be prima facie guilty of the offence under Section 477, Indian Penal Code, the document destroyed must amount to a valuable security. 'Valuable security' has been defined under Section 30 of the Indian Penal Code which says that it must mean 'a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.' It cannot be said that this administrative order of the Superintendent addressed to the Nazir by itself created any legal right in favour of the Nazir much less the two draft affidavits made by certain persons. Therefore, the learned Sessions Judge's recommendation that the offence with which the accused is charged does not fall under Section 477, Indian Penal Code, is correct, and in that view of the case, the committal by the learned Honorary Magistrate on that ground cannot be sustained, and under Section 215 of the Criminal Procedure Code we quash this commitment on a point of law, which in this case is that no offence has been made out on the facts under Section 477, Indian Penal Code.

5. Mr. H.D. Thakor, appearing for the accused in this case, has urged that the recommendation of the learned Additional Sessions Judge to the effect that after the commitment was quashed, the case should be sent to the District Magistrate to arrange for a trial by a competent Magistrate is not correct, and he says that once the order of committal is quashed, the Magistrate who heard the complaint has no further jurisdiction, and that, therefore, the only order to be passed after the commitment is quashed is that the accused should be discharged. This argument is not correct. Section 215 empowers the High Court to quash an order of commitment on a point of law, but it does not, in any way, restrict the power of this Court to pass any subsequent order after the commitment is quashed. On the contrary, there is a recent ruling of the Calcutta High Court in the case of The Emperor v. Girish Chunder Kundu (1929) 34. C.W.N. 13 There the full bench decided that while the primary effect of the order quashing the commitment was to supersede any action taken by the Magistrate under Section 210 and his proceedings subsequent thereto, it was necessary for the Magistrate to go back to the point at which he took cognizance of the complaint, that there was no need for a fresh complaint and that the Magistrate was to begin the trial afresh under Section 252 of the Criminal Procedure Code. That view is, no doubt, correct, and in our own High Court also after an order is made quashing the commitment, the subsequent order that is passed is that the matter should be sent back to the Magistrate who would conclude the trial before him. As an instance of this kind of order, I may refer to the case of Emperor v. Asha Bhathi : (1913)15BOMLR998 , in which after the order for commitment was quashed, it was directed that under Section 254 of the Criminal Procedure Code it was the Magistrate's duty to frame in writing a charge against the accused and then to proceed as described in Section 256 and the following sections, and the final order was that the commitment was quashed and the Magistrate should conclude the trial himself.

6. It is urged here that the effect of quashing the order of committal is that there is no charge against the accused under Section 477 of the Indian Penal Code. That, however, does not mean that the accused should be discharged entirely although he may not be guilty of an offence under this particular section. When the Magistrate has taken cognizance of this offence, then he has enquired into the offence, and if he finds that on the evidence in the case the accused is guilty of an offence which would fall under a different section, then it would be his duty to convict the accused of that offence. Under Section 209 of the Criminal Procedure Code it is provided that the Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge the accused, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly. This would mean that wherever the committal of an accused person to the Court of Session is not justified, then in that case the Magistrate has to see whether on the complaint and on the evidence that is adduced by the complainant the accused would be guilty of any offence, and that he has to charge the accused of that offence of which he finds him to be guilty, and it would be proper for him to convict him accordingly.

7. I, therefore, think that the order of the learned Additional Sessions Judge in this case is proper and that, as observed by this Court in Emperor v. Asha Bhathi, the proper order here would be that this commitment is quashed and that the Magistrate should conclude the trial himself. This reference is, therefore, accepted.

8. The papers should go to the trial Magistrate for disposal according to these remarks.

Broomfield, J.

9. I agree.


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