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Shaikh Bannu and anr. Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
Overruled ByState of Maharashtra Vs. S.K. Bannu and Shankar
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1974CriLJ162; 1973MhLJ800
AppellantShaikh Bannu and anr.
RespondentState of Maharashtra
Excerpt:
overruled / reversed by: state of maharashtra vs. s.k. bannu and shankar () - - since the surety gulabrao was not also present and failed to produce the accused in the court on the date of hearing, a notice was issued to him. bannu was then asked to produce the real surety on 10-6-1969 as the learned magistrate was satisfied on the statements that the person named in the bail application and the surety was not the real surety. subject to his other contentions it was urged that at the worst the offence could be said to have been committed in relation to a proceeding in the court in which the challan against deolal kisan was initially filed. it was held that the successor of that judge or magistrate is, therefore perfectly competent to file a complaint; these cases, therefore, can have.....padhye, j.1. these are appeals by two of the three accused who were tried for offences under sections 205, 205 and 109, 419, 419 read with 109, 465, 465 and 109, 467 and 471 of the indian penal code. the prosecution of the three accused was on the basis of a complaint made by shri r. k. karandikar, judicial magistrate, first class, akola on 12-8-1969 under section 476 read with section 195 of the code of criminal procedure. it arose out of criminal case against one deolal kisan under section 85(1)(2) and (3) of the bombay prohibition act. 2. one deolal kisan was arrested on 25-10-1968 in connection with an offence alleged to have been committed by him under section 85(1)(2) and (3) of the bombay prohibition act. he was produced before shri l. g. deshpande, second joint civil judge,.....
Judgment:
Padhye, J.

1. These are appeals by two of the three accused who were tried for offences under Sections 205, 205 and 109, 419, 419 read with 109, 465, 465 and 109, 467 and 471 of the Indian Penal Code. The prosecution of the three accused was on the basis of a complaint made by Shri R. K. Karandikar, Judicial Magistrate, First Class, Akola on 12-8-1969 under Section 476 read with Section 195 of the Code of Criminal Procedure. It arose out of Criminal case against one Deolal Kisan under Section 85(1)(2) and (3) of the Bombay Prohibition Act.

2. One Deolal Kisan was arrested on 25-10-1968 in connection with an offence alleged to have been committed by him under Section 85(1)(2) and (3) of the Bombay Prohibition Act. He was produced before Shri L. G. Deshpande, Second Joint Civil Judge, (Junior Division), First Class, Akola and was remanded to custody till 2-11-1968. On 1-11-1968 an application was made before that Court for releasing the offender Deolal Kisan on bail and along with that application an affidavit was filed purporting to be by one Gulabrao Rupchand Tikar as a surety. This affidavit was sworn before the Senior Clerk and the accused No. 2 Sk. Bannu is alleged to have identified him as Gulabrao. The Senior Clerk accepted what they stated and he made the endorsement on the affidavit and on the basis of that affidavit accepted the surety and on the basis of the bail application, offender Deolal Kisan was released on bail on 1-11-1968.

3. The case against Deolal Kisan came to be transferred on 20-4-1969 to the Court of Mr. Karandikar before whom the case came for hearing on 12-5-1969. On that date the accused Deolal Kisan remained absent and a non-bailable warrant was issued against him. Since the surety Gulabrao was not also present and failed to produce the accused in the Court on the date of hearing, a notice was issued to him. Gulabrao appeared on 2-6-1969 before the Magistrate in answer to this notice. He made a statement before the Magistrate that he did not stand as a surety for the accused Deolal Kisan and that he did not make any affidavit nor did he sign the application or the affidavit or the bail bond. He denied that he swore any affidavit for standing surety of Deolal Kisan. On this statement, the original accused No. 3 Mohammad Nazir who was the scribe of the bail application was called and his statement was recorded. The original accused No. 2 Sk. Bannu who had identified the deponent of the affidavit was also called. The accused No. 2 is the father of accused No. 3, Accused No. 2 Sk. Bannu was then asked to produce the real surety on 10-6-1969 as the learned Magistrate was satisfied on the statements that the person named in the bail application and the surety was not the real surety. On 9-6-1969 the accused No. 3 Mohammad Nazir made an application to the Magistrate on behalf of his father the accused No. 2 that the real name of the surety was Shankar Kisan Kawitkar and therefore on 10-6-1969 a summons was issued to the accused No. 1 Shankar Kisan Kawitkar who appeared in pursuance of this summons on 17-6-1969. His statement was also recorded. The accused No. 1 stated that the thumb impression on the bail application and the affidavit was obtained by the accused No. 2 and he had no knowledge about the contents of the application and the affidavit. The real Gulabrao also stated that he is a literate person and can sign his name whereas the bail application and the affidavit bore the thumb impression purporting to be that of Gulabrao which he denied. It is on the basis of these facts that the learned Magistrate Mr. R. K. Karandikar forwarded his complaint, to the Judicial Magistrate, (First Class) Akola to deal with the same. The Committing Magistrate Shri P. N. Panchawadkar held an enquiry under Section 207-A of the Code of Criminal Procedure, recorded the evidence of Magistrate Shri Karandikar, Shri . Pawar Senior Clerk and Gulabrao Rupchand Tikar and finding that there was a prima facie case against all the accused, committed them for trial before the Court of Session. The learned Additional Sessions Judge after recording the evidence of witnesses came to the conclusion that there was no case against the accused No. 3 Mohammad Nazir and acquitted him of the offences under Sections 205, 419, 465 and 471 read with Section 109 of the Indian Penal Code. He found the accused No. 1 Shankar son of Kisan guilty of the offence under Section 205 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- or in default of payment of fine to suffer further rigorous imprisonment for six months. Accused No. 1 was also convicted for the offences under Sections 419, 465 and 471 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for two years on each Count. The substantive sentences were to run concurrently.

4. The accused No. 2 Sk. Bannu was also found guilty of the offence under Section 205 read with Section 109 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- or in default of payment of fine to suffer further rigorous imprisonment for six months. He was also found guilty of the offences under Sections 419, 465 and 471 all read with Section 109 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for two years on each count. The substantive sentences were to run concurrently. These convictions are challenged by the two accused Shankar and Sk. Bannu in these appeals.

5. The appeals were heard on 27th and 28th of July, 1972. Accused No. 2 was asked to remain present. These appeals then came for hearing on 2-8-1972. On that day, an additional statement of the accused No. 2 Sk. Bannu was recorded under Section 342 of the Criminal Procedure Code. An application made to the Chief Officer, Municipal Committee, Akola, in the name of S.B.M. Yusuf was put to the accused. He denied that the said application was in his hand writing. His signature on this application was also put to this accused who admitted that the signature 'S. B. M. Yusuf' was his. Similarly, an endorsement on the back of Ex. 51 to the effect, 'Received 4 copies. S. B. M. Yusuf, 31-10-1968' was also admitted to be in his own hand writing and signed by him. He further stated that Kalavati, mother of Deolal and Govindmama together came to him and said that assessment copies of this number should be obtained. He then stated that he had gone to the Committee and submitted an application and after the copies were obtained, he returned the copies to them. Then he stated that Shankar resides near the house of Kalavati and that Kalavati called Shanker and said that he was Gulabrao and that man himself too said that he was Gulabrao. On his personally saying that he was Gulabrao, he got his affidavit sworn. He expressed his desire to examine two witnesses Govinda and Rajabhau in defence. On 7-8-1972 we passed an order directing the Additional Sessions Judge, Akola, who tried the case, to record the evidence of the defence witnesses whom the accused desires to examine as per the list given by them. The appeal was retained on our file and the trial Court was directed to send the de-positions of the witnesses to this Court. Accordingly, the Additional Sessions Judge recorded the evidence and has sent the evidence to this Court. The appeal was again reheard by us after the Additional Evidence was received.

6. Mr. K. H. Deshpande, the learned Counsel for the appellant-accused No. 2 Sk. Bannu has at the outset challenged the competency of the Magistrate Shri Karandikar to make the complaint under Section 476 of the Criminal Procedure Code. According to him, the offence if any, was committed before Shri L. G. Deshpande, 2nd Joint Civil Judge (Junior Division) and Judicial Magistrate First Class, Akola and he alone or his successor could make a complaint under Section 476 of the Criminal Procedure Code. It was urged that Shri Karandikar to whom the case was transferred by an order of the Sessions Judge was a transferee Court and as such had no jurisdiction to make the complaint. He also attacked the judgment of the Additional Sessions Judge on merits and contended that the accused No. 2 could not be convicted.

7. Mr. Kamlakar, the learned Counsel for the accused No. 1 Shankar, also adopted the arguments of Mr. Deshpande on the first point regarding the Jurisdiction of Mr. Karandikar to make a complaint and also challenged the conviction of Shankar on the merits. The argument of Mr. Deshpande on the question of the jurisdiction of the Magistrate Shri Karandikar was twofold. He first urged that Shri Karandikar was not a successor of Shri L. G. Deshpande but was merely a transferee Court, the transfer of the case to his Court being on an order of the Sessions Judge. It is urged that it is only the Magistrate before whom the offence is alleged to have been committed or his successor, who alone can make a complaint and not the transferee Court, The second ground that was urged was that the alleged offence cannot be said to have been committed in relation to a proceeding before Shri Karandikar but could be said to have been committed in relation to the proceedings before Shri L. G. Deshpande and, therefore, he alone or his successor or the Court to whom he is subordinate could make a complaint. In this connection, it is also contended that the proceedings before Shri Karandikar are not the same proceedings that were before Shri L. G. Deshpande as the matter before Shri L. G. Deshpande was at the stage of investigation only on 1-11-1968 when the accused Deolal Kisan was released on bail and the accused Deolal Kisan was chargesheeted subsequently. This challan or chargesheet was filed on 12-11-1968 and it was transferred to some other Magistrate by order dated 18-11-1968 and subsequently transferred further to the Court of Shri Karandikar on 28-4-1969. Section 195 of the Code of Criminal Procedure provides that amongst other offences punishable under sections mentioned therein, cognizance of an offence punishable under Section 205 an offence described in Section 463 or punishable under Section 471 will not be taken by any Court except on complaint in writing of the Court before whom any proceedings were pending in relation to which the offence is alleged to have been committed or by some other Court to which such Court is subordinate. Section 476 of the Criminal Procedure Code gives the procedure in cases mentioned in Section 195. Section 476 of the Criminal Procedure Code requires that where a Civil, Revenue or Criminal Court is of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in Section 195, Sub-section (i), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and has to forward the same to the Magistrate of the First Class having jurisdiction. Section 476 read with Section 195 of the Criminal Procedure Code makes it clear that the offence which appears to have been committed must be in relation to a proceeding in the Court and it is that Court which can forward a complaint for those offences. Section 195 of the Criminal Procedure Code further provides that it is that Court alone or his superior authority that can make a complaint and no other. If it can be said that the offence alleged to have been committed is in relation to a proceeding before the Court before whom the challan against Deolal Kisan was filed, then there is no doubt that that Court had jurisdiction to make the complaint under Section 476 of the Criminal Procedure Code. The complaint is to be made by the Presiding Officer of the Court and it is not disputed that the successor presiding officer of that Court could also have been competent to make a complaint under Section 476. It is, however, urged that Shri Karandikar's Court to whom the case against Deolal Kisan was transferred by the order of the Sessions Judge was a different Court altogether and Shri Karandikar was not a successor of the Court in which the challan was initially filed. Shri Karandikar was, therefore, not a successor of the presiding officer of the Court in which the challan was initially filed but was a transferee Court and altogether a different Court. It was then urged that since the offence could not be said to have been committed in the proceedings before Shri Karandikar, Shri Karandikar was not competent to make a complaint. Subject to his other contentions it was urged that at the worst the offence could be said to have been committed in relation to a proceeding in the Court in which the challan against Deolal Kisan was initially filed.

8. Mr. Deshpande relied upon In re Maneklal Garbaddas : AIR1927Bom47 ; Kuldipsing v. State of Punjab : 1956CriLJ781 and Ratti Ram Agarwala v. The State : AIR1960Pat206 . None of these cases are in point. In Maneklal's case an offence of perjury was committed before the Sessions Court at Ahmadabad before whom a trial was held. By a Government Notification, dated October 6, 1925, the District Judge of Kaira was constituted a Sessions Division distinct from the Sessions Division of Ahmedabad under the name of the Sessions Division of Kaira. The proceedings before the Sessions Judge at Ahemadabad were completed and disposed of. A complaint under Section 476 of the Criminal Procedure Code was made before the Sessions Judge at Kaira as the place where the initial offence was committed came within the new Sessions Division of Kaira. The Sessions Division of Ahmedabad was still in existence and it was held that the Sessions Court at Kaira could not be said to be a successor to the Court of the Additional Sessions Judge of Ahmedabad. It was also not a transferee Court, because the proceedings before the Additional Sessions Judge at Ahmadabad had already come to an end when the complaint under Section 476, Criminal P. C. was forwarded to the Sessions Judge, Kaira. In : 1956CriLJ781 cited supra, a civil suit was filed in the Court of the Subordinate Judge of the First Class. The Court passed a preliminary decree and also final decree. An appeal to the High Court was also dismissed. At that time, the Presiding Judge of that Court was Mr. E. F. Barlow. The case was fully disposed of by Mr, Barlow and nothing was pending before him. The plaintiff later made an application in the Court of Mr. W. Augustine, who is said to have succeeded Mr. Barlow as a Subordinate Judge of the first class, asking that a complaint be filed against the appellant under Sections 193 and 471, Penal Code. However, before that application could be heard, Mr. Augustine was transferred and no Subordinate Judge of the first class was appointed in his place; instead Mr. K. K. Gujral, a Subordinate Judge of the fourth class, was sent to this area and was asked to decide the matter. But as he was only a subordinate Judge of the fourth class he made a report to the District Judge that he had no jurisdiction because the offence had been committed in the Court of a Subordinate Judge of the first class. The District Judge thereupon transferred the matter to the Senior Subordinate Judge, Mr. Pitam Singh, and that officer made the complaint which was under consideration. It was held by their Lordships of the Supreme Court that the Senior Subordinate Judge who made the complaint had no jurisdiction to make it, either as the original Court which tried the suit, or as the appellate authority under Section 476-B, Criminal P. C. Here the Court of the Subordinate Judge, First Class remained vacant after Mr. Augustine was transferred and no successor in his place was appointed. There were no proceedings pending before Mr. Pitam-sing, Senior Subordinate Judge, to whom the application was transferred and there were no proceedings before the Senior Subordinate Judge in relation to which the offence can be said to have been committed. It is on these facts that it was held that Mr. Pitam Sing the Senior Subordinate Judge was not competent to make the complaint. In AIR 1960 Pat 208 : 1960 Cri LJ 631 (2) it was held that the offences referred to in Section 195(1)(b) are not committed against the Judge or Magistrate, who was the presiding officer of the Court at the time when the alleged offence was committed in, or in relation to, a proceeding in that Court; but they are committed against the Court itself. It was held that the successor of that Judge or Magistrate is, therefore perfectly competent to file a complaint; but the Court must be the same, and no other Court can file the complaint. The offences for which the complaint had been filed by the Sub-Divisional Magistrate of Katihar against the petitioners were not committed in Katihar; they were committed in the Court of the Sadar Sub-Divisional Magistrate of Purnea. The new Sub-Division of Katihar had been created with effect from the 1st May, 1954, and from that date, the Sub-Divisional Magistrate of that Sub-Division had jurisdiction to deal with all cases which arose within its area. But since the offence was committed in or in relation to a proceeding in the Court of the Sadar Sub-Divisional Magistrate of Purnea, it was held that Sub-Divisional Magistrate of Katihar had no jurisdiction to deal with the offence as the Court of the Sadar Sub-Divisional Magistrate of Purnea still existed, and had its own presiding officer and it was that Court which was competent to file a complaint relating to an offence covered by Section 195(1)(b) which was previously committed in, or in relation to, a proceeding in that Court. These cases, therefore, can have no application to the case like this. If the offence can be said to have been committed in or in relation to a proceeding in the Court in which the challan was initially filed and subsequently that proceeding before its completion was transferred to another Magistrate having jurisdiction that transferee Court will become a successor to that Court and the offence, if committed while the proceeding was pending before the first Court, could also be said to have been committed in or in relation to a proceeding in the transferee Court since the same proceeding was continuing in the latter Court also. The Courts which made the complaint in the three cases cited above were not the Courts before whom any proceedings were pending in relation to which the offence could be said to have been committed. That cannot be said to be the case here because the proceeding in relation to which the offence is alleged to have been committed was pending in the transferee Court and finally, disposed of by it. In Hasan Ajam v. Emperor AIR 1934 Bom 185 : 35 Cri LJ 848 the Division Bench of this Court has held that in the case of an attempt to fabricate evidence, the Court which must file the complaint under Section 195 is the Court which ultimately deals with the case, and in which the false evidence, if the attempt had succeeded, could have been given. In this case a prosecution was proceeding under Sections 147, 504 and 596, Penal Code, before the Second Class Magistrate of Chorasi and during the pendency of that proceeding the applicant was alleged to have attempted to fabricate evidence in respect of that prosecution. Subsequently, that prosecution was transferred from the Second Class Magistrate to the First Class Magistrate of Surat who tried the case and convicted the accused. Clearly, the latter Court was a transferee Court and it was held that he was competent to make the complaint under Section 476 of the Code of Criminal Procedure. Similar was the view taken in Tarakeswar v. Emperor AIR 1926 Cal 788 : 27 Cri LJ 648; Behari Lal v. Abdul Qadir AIR 1940 Lah 292 : 41 Cri LJ 843; Mattayya v. Emperor : AIR1930Mad192 and Gerimal v. Shewaram AIR 1926 Sind 215 : 27 Cri LJ 780. The transferee Court who deals with the same proceeding which was pending before the initial Court has seizing over the matter and it is the same proceeding which is continued and if any offence is committed at the initial stage of the proceeding, the offence can be said to have been committed in relation to that proceeding before such a Court to whom the case has been subsequently transferred. In view of this, if it can be said that the offences alleged to have been committed are in relation to a proceeding which was initiated in the Court before whom the challan was filed, then Shri Karandikar as the transferee Court would also be competent to make a complaint under Section 476 of the Criminal Procedure Code.

9. The more important question, however, that is raised by Mr. K. H. Deshpande is that the proceeding before Shri Karandikar is not the same proceeding or a continuation of the same proceeding which was before Shri L. G. Deshpande in or in relation to which the offence can be said to have been committed. It is urged that the proceeding before Shri L. G, Deshpande before whom the affidavit in question was filed and which was only at the stage of investigation by the police was quite a distinct proceeding than the one which came to be transferred to the Court of Shri Karandikar which proceeding was a regular trial after the accused were chargesheeted. It is argued that since the proceedings after the charge-sheet are quite separate and distinct from the proceedings prior to that at the investigation stage the Court of Shri Karandikar or for the matter of that even the Court before whom the prosecution was initiated is not a successor Court or even a transferee Court so far as the proceeding in which the offences are alleged to have been committed is concerned. Mr. Deshpande argues that after the offender Deolal Kisan was released on bail on 1-11-1968 by Shri L. G. Deshpande the proceeding before him came to an end and the subsequent prosecution on the basis of a chargesheet filed by the police was altogether a different case. It is then contended that if any complaint could be filed, it should have been either by Shri L, G. Deshpande before whom the offence can be said to have been committed or his successor but since the Court of Shri Karandikar is not a successor of Shri L. G. Deshpande so far as those proceedings are concerned, Shri Karandikar was not competent to make the complaint.

10. In dealing with this question it would be necessary to take into account certain provisions of the Code of Criminal Procedure, Section 54 of the Code empowers in the circumstances mentioned therein a police officer to arrest a person without an order from the Magistrate and without a warrant. One of such cases is where a person is concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned. Section 60 then requires the police officer making an arrest without warrant to take or send the person arrested without unnecessary delay before a Magistrate having jurisdiction in the case or before the officer in charge of a police station. Section 61 enjoins a police officer not to take in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not in the absence of special order of Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court; if however, the investigation cannot be completed within the period of 24 hours, then the police officer has to follow the procedure laid down in Section 167 of the Code of Criminal Procedure. It provides that whenever a person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours fixed by Section 61 and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation if he is not below the rank of Sub-Inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time forward the accused to such Magistrate.

11. The Sub-section (2) of Section 167 empowers a Magistrate to whom an accused person is forwarded to authorise the detention of the accused in such custody as the Magistrate thinks fit, for a term not exceeding 15 days in the whole and this is so whether he has or has not jurisdiction to try the case. At the end of the period of 15 days, however, if the Magistrate has no jurisdiction to try the case or commit it for trial and considers further detention unnecessary, he may order accused to be forwarded to a Magistrate having such jurisdiction. It will thus appear that the detention order or the order of remand to the police custody, as it is called, can be made by any Magistrate empowered to order such detention, whether he has or has not jurisdiction to try the case.

12. Then we come to Section 169 of the Code which comes in after the investigation of the police is complete and under this provision if upon an investigation it appears to the officer in charge of the police station or to the police officer making the investigation that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to the Magistrate such officer shall if such person is in custody release him on his executing a bond, with or without sureties, as such officer may direct to appear if and when so required before a Magistrate empowered to take cognizance of the offence on a police report or try the accused or commit him for trial. Thus under this provision the officer in charge of the police station can release a person in custody even without reference to the Court. If however on investigation it is found that there is sufficient evidence or reasonable ground, then under Section 170 of the Code, the officer in charge of the police station has to forward the accused in custody to a Magistrate empowered to take cognizance of the offence on a police report or try the accused or commit him for trial. Then Section 173 of the Code requires that every investigation under this Chapter shall be completed without unnecessary delay and as soon as it is completed the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government setting forth the details mentioned therein.

13. On the reading of these provisions, it appears that the production of the person detained in custody after arrest need not be to a Magistrate having jurisdiction to try the accused. If ultimately on the completion of the investigation the officer in charge of the police station decides to forward the report to the Magistrate under Section 173, then that report or the charge sheet has to be forwarded to the Magistrate who has jurisdiction to try the case against the accused. It may be that in a given case the Magistrate before whom the accused is produced for obtaining a remand to police custody may be a Magistrate who has also the jurisdiction to try the case, but it need not necessarily be so.

14. Now in a case where the Magistrate before whom the arrested person is produced under Section 169 of the Code had no jurisdiction to try the case if started on the police report under Section 173, then the proceedings before such Magistrate which are only limited to granting the remand or releasing the detained person on bail, is a proceeding which is distinct and separate from the proceeding in the Court having jurisdiction to try the case and before whom the report is made under Section 173 of the Code. In such a case, the former Court which grants a remand would not be authorised to try the case against the accused. The proceedings on the basis of the police report under Section 173 would then be a separate and distinct proceeding before that Magistrate from the stage of the receipt of police report by him. The Magistrate trying the case would have nothing to do with the proceedings before the Magistrate before whom the arrested person was produced for taking a remand pending further investigation.

15. We have considered the case where the Magistrate before whom the arrested person was produced had no jurisdiction to try the case and later the police report was submitted to another Magistrate having jurisdiction to try the case. In such a case, the former Magistrate could not have tried the case though the latter Magistrate who tried the case could have exercised the power under Section 169 of the Code if the arrested person was produced before him. If in a case where the arrested person is produced before a Magistrate having no jurisdiction to try the case and subsequently brought before a Magistrate having jurisdiction, the two proceedings before the two Magistrates have to be considered as separate proceedings having nothing to do with each other. Then in principle there is no reason why the two proceedings, one for remand and the other trial of the case, cannot be considered to be distinct and separate proceedings simply because the Magistrate before whom the arrested person is produced for obtaining a remand to police custody happens to be a Magistrate having jurisdiction and the police report is subsequently forwarded to the same Magistrate.

16. If this position is accepted, then the offences which can be said to have been committed by the accused person during the course of one of the two proceedings namely, the remand proceedings and the trial, then it cannot be said that the offence has been committed in relation to the other proceeding. To put it concretely, if an offence is committed during the course of the proceedings before the Magistrate who passed an order of remand during the investigation as such and subsequently the person arrested is put up for trial, then it cannot be said that the offence has been committed in relation to the proceedings in which he had been tried, Conversely, if an offence is committed by an accused person during the course of the trial before a Magistrate having jurisdiction to try the case, then it cannot be said that the offence has been committed in relation to a proceeding in which the arrested person was produced before a Magistrate with or without jurisdiction for being further detained in custody pending investigation.

17. In the instant case, the offence is said to have been committed in or in relation to the proceedings before Mr. L. G. Deshpande before whom the arrested person was produced for his further detention in custody pending investigation. Mr. L. G. Deshpande who was then presiding successor-in-office in that Court when he was presiding, could have made a complaint under Section 476 of the Code and on such complaint being made, the Magistrate could have taken cognizance under Section 195. Mr. Karandikar who ultimately tried the case was not the successor-in-office of Mr. L. G. Deshpande who had dealt with the proceedings under Section 167 of the Code. There was no question of those proceedings also being transferred. In fact what was transferred to Mr. Karandikar by the Sessions Judge was not and could not be those proceedings before Mr. L. G. Deshpande prior to the submission of the police report. What was transferred to Mr. Karandikar was the case on the basis of the police report under Section 173 and even accepting that the transferee Court is authorised to make a complaint, Mr. Karandikar could make a complaint in respect of the offences mentioned in Section 195 of the Code, if such an offence can be said to have been committed in or in relation to the proceedings either in his Court or in the Court from whom the case was transferred to him. Since in this case it cannot be said that any of the offences can be said to have been committed in the proceedings either before Mr. Karandikar or in the Court of Magistrate before whom the case was initiated by forwarding police report under Section 173, Mr. Karandikar, nor the Magistrate before whom the case was initiated could make a complaint and the Court to which such a complaint was forwarded could not under Section 195 of the Code take cognizance of any of the offences in respect of which the complaint was made. We are of the view that such a complaint could have only been made by Mr, L. G. Deshpande, who had released the accused on bail prior to the initiation of the case or his successor-in-office in that Court. So far as those proceedings in which the accused were released on bail by Mr. L. G. Deshpande are concerned, Mr. Karandikar cannot be said to be the successor-in-office of Mr. L. G. Deshpande and on his complaint cognizance could not have been taken by the lower Court for any of the offences specified in Section 195(1)(b) or (c) of the Code.

18. The complaint against the accused was in respect of offences punishable under Sections 205, 419, 465 and 471 read with Section 109 of the Indian Penal Code. Out of these, offences under Sections 205, 465 and 471 are covered by Section 195, though not the offence under Section 419. With respect to offence under Section 419, a Magistrate could take cognizance even without a complaint from the Court in relation to whose proceedings the offence was committed. However, the offence under Section 419 in this case is so integrated with the other offences for which the accused were put up for trial that the trial of the accused for that offence could not be separated from the trial for the rest of the offences. If, therefore, the trial in respect of the offence under Sections 205, 465 and 471 is not competent, then the trial for the offence under Section 419, which cannot be separated from the rest, would also be incompetent. In this view, we hold that the learned Committing Magistrate Mr. P. N. Panchwadkar could not have taken cognizance of these offences on the complaint of the Magistrate Mr. Karandikar and similarly the proceedings before the Additional Sessions Judge on the accused being committed to him by the Committing Magistrate would be without jurisdiction. The proceedings, therefore, before the Committing Magistrate as well as before the Additional Sessions Judge resulting in the conviction of the original accused Nos. 1 and 2 need to be quashed.

19. In view of the decision we have arrived at on these legal questions, the convictions of the appellants-accused are liable to be set aside and it is not necessary to go into the merit of the case. However, in order to complete the judgment, we are discussing the merits of the case also.

20. So far as the accused No. 2 Shaikh Bannu is concerned, there is no evidence to show that this accused knew either Gulabrao or Shankar. The evidence of either Kalavati (P.W. 2) or Gulabrao (P.W. 3) does not show that this accused knew either Gulabrao or Shankarrao, the accused No. 1. In fact Gulabrao (P.W. 3) has stated that he did not know any of the three accused on 1-11-1968 and came to know these accused persons only after the accused were prosecuted in this case. Kalavati (D.W. 2) did say that the accused No. 2 Shaikh Bannu asked her whether she knew the person sitting by her side in the Court compound on that day and she told him that she knew him as he resides in her locality. She then stated that the accused No. 2 then represented to her that the thumb impression of the accused No. 1 was necessary for showing that he knew Deolal and then the accused No. 2 obtained the thumb impression of the accused No. 1 in the verandah. This witness is the mother of Deolal, who was got released on bail. She was naturally interested in getting her son released on bail and would not hesitate now to throw the blame on the accused No. 2 for being instrumental in putting up the accused No. 1 Shankar as Gulabrao. This woman was prosecuted along with her son and there is a theft case and was sentenced to 4 months' rigorous imprisonment and to a fine of Rs. 500/-. On the date of her evidence, an appeal against her conviction was said to be pending. Not much reliance can be placed on such evidence.

21. The other witness Govinda who was examined subsequently as D.W. 2 as an additional witness in pursuance of the order of this Court dated 7th August, 1972, is also a close relation of Kalavati. He had stood surety for Deolal on two occasions. He also does not say that the accused knew either Gulabrao or Shankar. Similarly another witness Waman (D.W. 1) for accused No. 1 does not say that the accused No. 2 knew either Gulabrao or Shankar. It is true that this accused obtained the certified copy of the assessment list from the Municipal Committee with respect to the house of Gulabrao. He had also denied that he had made any application or obtained certified copy. That however would not show that either he knew Gulabrao or Shankar. According to his additional statement recorded under Section 342 of the Code of Criminal Procedure on 2-8-1972, it was Govindmama and Kalavati who gave him the number of the house and asked him to obtain the assessment list in respect of that house and on their instructions he made the application and obtained certified copy and gave the copies to them. He also stated that Kalavati pointing out to Shankar who was with her told him that he was Gulabrao and that man himself (Shankar) also said that he was Gulabrao and because of this that he got the affidavit sworn. On the evidence, therefore, it is not conclusively established that the accused No, 2 knew that the person who was to swear an affidavit and who was produced before the officer administering oath was Shankar and not Gulabrao. Unless that knowledge can be fastened on him, it cannot be said that he is guilty of abetment of the offence. It could as well be that on being told by Kalavati and Shankar that that person (Shankar) was Gulabrao and in that belief he got an affidavit sworn and identified him before the officer administering oath, but from that it cannot be said that he intentionally abetted the commission of the offences.

22. Radhakishun v. Emperor AIR 1929 Pat 157 : 30 Cri LJ 642 was a similar case. There a person who identified another who intended to cheat the Treasury Officer by personation, made the identification on the assurance of another in whom he had confidence, but he did not tell the Treasury Officer that he identified only on such assurance, could not be convicted of abetting the offence unless it is definitely proved that he knew that the offence was being committed, that is to say, that the man whom he identified was not the same. In our opinion, the benefit of doubt should be given to the accused No. 2 Shaikh Bannu and he could not be held guilty for the offence of abetting the commission of the offence, by the accused No. 1, Giving benefit of doubt, the conviction and sentence of the accused No. 2 Shaikh Bannu is liable to be quashed.

23. So for as the accused No. 1 Shankar is concerned, the matter stands on a different footing. The application and affidavit for standing surety were in the name of Gulabrao. The accused No. 1 Shankar knew that he was not Gulabrao. The accused No. 1 Shankar stated that he did not go before the officer administering the oath and did not tell him that he was Gulabrao, but this explanation cannot be accepted. The Senior Clerk of the Judicial Magistrate, First Class, Akola, Waman Sahebrao Pawar (P.W. 2) before whom the affidavit was sworn, has stated that both the accused came to him on 1-11-1968 and presented the application and affidavit before him. He knew the accused No. 2 Shaikh Bannu from before as he was working as a clerk to an advocate. He then stated that he asked the name of the person who came to him with accused No. 2 Shaikh Bannu. He refers to the accused No. 1 Shankar. He then states that that man, i.e. accused No. 1, told him his name as Gulabrao Rupchand Tikar. He then asked accused No. 2 Shaikh Bannu as to whether he knew that person and the accused No. 2 Shaikh told him that he knew that person and identified him before him. This witness has further stated that the contents of the affidavit were read over to that person, namely, the accused No. 1, and he admitted the contents to be correct. He also states that that person swore an affidavit and put his thumb impression on it in his presence and the accused No. 2 Shaikh Bannu also put his signature on Exhibit 13 in his presence in token of his identifying that person. There is nothing to show as to why this witness should falsely involve the accused No. 1 Shankar. We accept his evidence and on the basis of his evidence, we have no hesitation in holding that the accused No. 1 represented himself to be Gulabrao before the swearing officer and thus was guilty of personation. On the evidence we will hold that the accused No. 1 Shankar would be guilty of the offence under Sections 205, 419, 465 and 471 of the Indian Penal Code and if the accused No. 1's conviction was otherwise legal, we would have maintained the sentence of the accused No. 1.

24. Since however, we have already held that the proceedings before the Committing Magistrate and the Additional Sessions Judge were without jurisdiction and liable to be quashed, since Mr. Karandikar was not competent to make the complaint, the convictions and sentences of both the accused-appellants are liable to be set aside. We accordingly set aside the convictions and sentences of both the appellants-original accused Nos. 1 and 2 and direct that their bail bonds be cancelled.

25. We may, however, observe that though on merits we have given benefit of doubt to the accused No. 2 Shaikh Bannu, we do not approve of the practice followed by him and others in the matter of getting the affidavit sworn. Counsel's clerks are expected to act with responsibility and not in a light hearted manner as in the present case. Before identifying a person either before the Court or any authority, the identifier should get himself fully satisfied that he is the real and proper person whom he is identifying. Such an identification should not be so lightly as in the instant case on the so-called assurance given by someone. It is only after one is satisfied about the identification of a person, he should take upon himself to identify such person before the authority. Though the accused No. 2 is given benefit of doubt and acquitted, we record our disapproval of the manner in which he acted in the present case without due care and attention. He and persons like him would do well to act with responsibility in such solemn matters which are likely to land him and others in trouble.

26. Both the appeals are, therefore, allowed and both the accused are acquitted. Their bail bonds be cancelled.


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