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Hukum Singh Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1930All92
AppellantHukum Singh
RespondentEmperor
Excerpt:
- - champavati and bahori lal occupied the same house and bahori lal may well be taken to be the natural protector of mt......mt. champavati and her minor son. it was alleged that by trickery and by a pretence of friendship, hukam singh, the applicant, insinuated himself into the confidence of mt. champavati and bahori lal in various ways. hukam singh persuaded mt. champavati to believe that there was a danger of her cash and jewellery being appropriated by bahori lal and that it would be safer and more prudent if she allowed hukam singh to take charge of her cash and jewellery and keep them in deposit for her. the unsuspecting widow believed hukam singh and put him into possession of ornaments, worth rs. 350 and cash rs. 1,100. the complaint of mt. champavati against hukam singh was limited to these two items which concerned her and which had nothing to do with bahori lal. she charged hukam singh with cheating.....
Judgment:

Sen, J.

1. The facts of the case which have given rise to this application for revision are that, on 7th August 1928, Mt. Champavati and one Bahori Lal instituted a complaint under Sections 417 and 406, I.P.C., in the Court of a Special Magistrate with second class powers. The District Magistrate of Etah transferred the case to the Sub-Divisional Magistrate of Kasganj. The latter, in his turn, transferred the case to Mr. Saved Ghayoor Ahmad, Magistrate, First Class.

2. Mt. Champavati is the widow of a predeceased brother of Bahori Lal. Both her husband and Bahori Lal were in the railway service. After the death of her husband, Mt. Champavati received a considerable sum of money from the railway authorities on account of the provident fund of her deceased husband. Bahori Lal also received a large sum of money from the railway on his own account as his share of the provident fund. It is common ground that Mt. Champavati and Bahori Lal occupied the same house and Bahori Lal may well be taken to be the natural protector of Mt. Champavati and her minor son. It was alleged that by trickery and by a pretence of friendship, Hukam Singh, the applicant, insinuated himself into the confidence of Mt. Champavati and Bahori Lal in various ways. Hukam Singh persuaded Mt. Champavati to believe that there was a danger of her cash and jewellery being appropriated by Bahori Lal and that it would be safer and more prudent if she allowed Hukam Singh to take charge of her cash and jewellery and keep them in deposit for her. The unsuspecting widow believed Hukam Singh and put him into possession of ornaments, worth Rs. 350 and cash Rs. 1,100. The complaint of Mt. Champavati against Hukam Singh was limited to these two items which concerned her and which had nothing to do with Bahori Lal. She charged Hukam Singh with cheating and criminal breach of trust with reference to the two items indicated above.

3. In the same petition of complaint, dated 7th August 1928, Bahori Lal charged Hukam Singh with cheating and criminal breach of trust with reference to large sums of money aggregating to Rs. 2,500. The money belonged to Bahori Lal. Mt. Champavati had no share in this money. The person who had been imposed upon with reference to this was Bahori Lal and not Mt. Champavati. The transactions which formed the basis of the complaint of Mt. Champavati were essentially different from those which afforded a cause of action to Bahori Lal.

4. It was unfortunate and inexpedient to address a joint complaint to the Magistrate with reference to two independent transactions affecting two individuals separately and which did not present any common feature excepting in so far that two persons were alleged to have been victimized by the wily machination of the same individual. The Magistrate ought to have insisted upon two complaints being presented before him, one by Mt. Champavati and the other by Bahori Lal. It would have been reasonable and more businesslike to do so, to avoid any future complications or embarrassment in the trial of the cases and would have limited the scope of the issue which emerged for decision in each ease separately.

5. On 16th November 1928, it had dawned upon the two complainants that it was not right that the offences committed against them should be heard and disposed of in the course of a joint trial; and that on that date, they addressed a petition to the Magistrate that the trial of the case should be limited to such items only as affected Bahori Lal. The only order passed by the Magistrate on this application was 'file.' He, however, confined his enquiry to such items only as had been alleged to have been obtained from Bahori Lal either by cheating or by criminal breach of trust. He committed Hukam Singh to the Court of Sessions, alternatively under Sections 406 and 420, I.P.C.

6. The charges on the aforesaid sections constitute a warrant case under the Criminal Procedure Code, but they are compoundable under Section 345, Criminal P. C, with the permission of the Court before which any prosecution for such offence is pending. Hukam Singh appears to have persuaded Bahori Lal to agree to have the dispute referred to the arbitration of one Babu Gulzari Lal. The parties applied to the Court of Sessions for leave to compound the case. The Court granted the permission and the case was compounded on 23rd February 1929.

7. The effect of the petition dated 16th. November 1928, was that the original complaint of Mt. Champavati was no longer the subject of a judicial enquiry. There was no non-appearance of Mt. Champavati within the meaning of Section 247, Criminal P. C, and the Magistrate passed no order acquitting the accused on the complaint of Mt. Champavati. It is abundantly clear that Mt. Champavati's complaint has never so far been the subject of a judicial investigation. No evidence had been recorded and the truth or falsity of the complaint had not been tested on the merits. Hukam Singh has not been ordered to be discharged on the complaint of Mt. Champavati.

8. The effect of the composition with, Bahori Lal was that Hukam Singh was acquitted of the charges brought by Bahori Lal against him. Section 345(6), Criminal P. C, is clear on the point:

The composition of an offence under this, section shall have the effect of an acquittal of the accused with whom the offence has been compounded.

9. The offence which has been compounded was an offence against Bahori Lal and not against Mt. Champavati. The composition of that offence by Bahori Lal could not operate as an acquittal with reference to the offence committed against Mt. Champavati.

10. After the disposal of the Sessions case, a change had taken place in the personnel of the officer presiding in the Court of the Deputy Magistrate who had committed the case to the Court of Sessions. Mr. Sayed Ghayoor Ahmad was transferred and his place was taken by B. Jwala Prasad, Magistrate First Class.

11. On 5th April 1929, Mt. Champavati filed a fresh complaint in the Court of Babu Jwala Prasad against Hukam Singh charging him with the commission of offences punishable under Sections 417 and 420, I.P.C. In this petition, Mt. Champavati rehearsed the same facts, on which the complaint, dated 7th August 1928, was founded.

12. Upon notice being issued to Hukam Singh, he contended that the effect of the order passed on the petition of Mt. Champavati, dated 16th November 1928, was that he was discharged by the Court and that the said discharge could not be set aside by another Magistrate of coordinate jurisdiction. It was further argued that the effect of the acquittal by the Court of Sessions upon the composition of the offence by Bahori Lal was that Hukam Singh was acquitted of all charges which were set out in the original complaint dated 7th August 1928, preferred jointly by Mt. Champavati and Bahori Lal, and that having regard to the provision of Section 403, Criminal P. C, it was beyond the competence of the Magistrate to entertain a fresh complaint on the same facts against Hukam Singh.

13. These contentions were repelled by the Magistrate, who by his order dated 1st June 1929, directed that the case of Mt. Champavati must proceed against the accused. Hukam Singh applied to the learned Additional Sessions Judge, who held that the order of the lower Court was correct in law and dismissed the application.

14. Hukam Singh comes up before this Court in revision.

15. The learned Additional Sessions Judge was of opinion that the complaint of Mt. Champavati had not been disposed of by the Magistrate in any shape or form; that, at the outset, the order of the Magistrate on the application of Mt. Champavati dated 16th November 1928, and his subsequent order of commitment amounted to a discharge of Hukam Singh; and that under the law the Magistrate was not precluded from rehearing the complaint or from entertaining a fresh complaint based upon the same facts.

16. The learned Counsel for the applicant has cited certain authorities in traverse of the view taken by the learned Additional Sessions Judge. In Moul Singh v. Mahabir Singh [1900] 4 C.W.N. 242 all that was held was that it was not proper for a District Magistrate to direct proceedings to be taken on a police report with reference to a matter which had come up before a Sub-Divisional Magistrate and in which the said Magistrate had made an order that it was not necessary to proceed against certain accused persons, unless the District Magistrate had withdrawn the whole matter from the Court of such Subordinate Magistrate. In the matter of Guggilapu Paddayya of Palakot [1911] 34 Mad. 253 it was held that the effect of Section 247, Criminal P. C, was that the order amounted to an acquittal and that the non-mention of Section 247 in the explanation to Section 403, Criminal P. C, was indicative of the fact that the latter section was not intended in any way to limit the effect of an order of acquittal under Section 247. In the present case, no order was passed on the complaint of Mt. Champavati either under Section 247 or under Section 403, Criminal P.C. This ruling, therefore, is not helpful to the applicant. It has been held in Kumarswami Chetty v. Kuppuswami Chetty [1918] 41 Mad. 685 that:

an offence is complete when the acts, constituting it, have been committed apart from whether any complaint or charge has been laid before the Court or not and that the compounding of offences mentioned in para. 1, Section 345, Criminal P. C, is lawful even if it takes place before any complaint is filed in respect thereof.

17. In the present case, no composition had been arrived at between Mt. Champavati and Hukam Singh either before the Court or outside the Court and therefore there was no composition in existence which could operate as an acquittal.

18. The case of Queen Empress v. Adam Khan [1899] 22 All. 106 was strongly relied on. It was ruled in this case by Blair and Burkitt, JJ., that when a competent tribunal had dismissed a complaint, another tribunal of exactly the same powers cannot reopen the same matter on a complaint made to it:

We think it utterly contrary to sound principles that one Magistrate of co-ordinate jurisdiction should, in effect and substance, deal with, as if it were an appeal or a matter for revision, a complaint which had already been dismissed by a competent tribunal of co-ordinate authority.

19. This ruling has no application to the facts of the present case because the complaint of Mt. Champavati had not been dismissed by a competent tribunal. Moreover, the aforesaid view does not appear to have been adopted or agreed to by some of the learned Judges of this Court. In an earlier decision in re, Queen Empess v. Chotu [1881] 9 All. 52 a divergent view appears to have been taken. In Queen Empress v. Umedam [1895] A.W.N. 86 it was held by Knox and Aikman, JJ., that:

a Magistrate, who had passed an order dismissing a complaint, may at the instance of the complainant, and without direction from any superior authority take cognizance of the same offence or of any other offence constituted by the same facts upon a second proper complaint being laid before him.

20. In Bhagwan Din v. Dibba [1908] 5 A.L.J..137 it was held:

that the same Court was not precluded from entertaining a second complaint in pari materia.

21. The case law on the subject was considered by Richards, J., in re, Emperor v. Meharban Husain [1960] 29 All. 7, and the learned Judge is reported to have observed as follows:

I can find nothing in the Criminal Procedure Code which prevents the Magistrate from entertaining a second complaint made against the same person, even though the second complaint may be connected with a previous complaint which has already been dismissed under the provisions of Section 203.

22. In Ram Bharos v. Bahan [1914] 36 All. 129 the 'second complaint was instituted before the same tribunal although the incumbent was a different individual, and it was ruled that:

where the question is as to the competence of a Magistrate to entertain a second complaint in pari materia with a former complaint which has been dismissed under Section 203, Criminal P. C, it was not necessary that both complaints should be before the same person but before the presiding officer of the same Court.

23. Both, in principle and in view of the weight of authority, there was nothing to preclude. Babu Jwala Prasad from taking cognizance of the second complaint instituted by Mt. Champavati.

24. In construing Section 403, Criminal P.C. the explanation appended to the section ought not to be lost sight of:

Dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this rection.

25. A verdict of acquittal is immune from challenge and the applicant is entitled to its full benefit; but the applicant has not produced a certified copy of the record or proceedings of an acquittal to show that he has been acquitted of the offence of which he has been arraigned or that he might have on his former trial in the Court of Sessions been convicted of the offence of which he is now sought to be arraigned. To set up the plea of autrefois acquit, it is essential that there must have been a previous trial of the offence charged, terminating in an order of acquittal. The explanation appended to the section places this matter with the greatest clearness and in fact beyond the realm of controversy. There is an order of acquittal in favour of Hukam Singh but to sustain the plea now advanced Hukam Singh had to establish that the offences were substantially the same and grew out of the same facts. One of the tests for determining the identity of the offences is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. In view of the circumstances of this case, it is impossible to hold that the evidence, which had a direct relation to Bahori Lal's case, could have any bearing upon the case propounded by Mt. Champavati. Any immaterial details may be eliminated, and the substance, rather than the form of charges in the two indictments have to be considered. But the two indictments are essentially different. They relate to separate and independent transactions, affecting distinct individuals. It is impossible to hold that the effect of acquittal with reference to the complaint of the one is a bar to the entertainment of the second complaint. This application is without force and is dismissed.


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