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Ayub Syed Hasan Vs. State of U.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Appeal No. 960 of 1960
Judge
Reported inAIR1962All132
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195, 476, 559 and 559(1); Indian Penal Code (IPC) - Sections 466 and 471
AppellantAyub Syed Hasan
RespondentState of U.P.
Appellant AdvocateGopal Behari, Adv.
Respondent AdvocateGovt. Adv.
DispositionAppeal dismissed
Excerpt:
.....its function may vary from time to time, we fail to perceive, with due deference, how an offence committed before that court or brought to its notice in the course of a judicial proceeding before it, ceases to be such because the individual judge who tried the case or heard the proceeding ceased to be the presiding judge of that court. the real test is whether the second officer, like the first, is a presiding officer of that court it would, in our opinion, be immaterial whether the judge or the officer filing the complaint is successor in office of the first officer or not. 23. we think that the view taken by the patna high court is in consonance with the provisions of the code, we are clearly of opinion that a temporary sessions judge who takes over the file of another..........the state government shall establish a court of session for every sessions division and appoint a judge (sessions judge) of such court, and additional sessions judges and assistant sessions judges to exercise jurisdiction in such court and to direct at what place or places the court of session shall sit. under criminal procedure code there is one 'court' in each sessions division which is manned by a number of judges. the officers presiding over such court are described as sessions judge, additional sessions judge, temporary sessions judge, etc. and all of them exorcise the same powers in the sessions division to which they are appointed.11. the courts have held that under section 476, cr. p. c. the power to direct prosecution is conferred on the 'court' and not on the particular.....
Judgment:

Broome, J.

1. Ayub the appellant in this case, has beenconvicted by the Sessions Judge of Allahabadfor an offence under Section 466/471 I. P. C. andhas been sentenced to four year's R. I.

2. The prosecution allegations are thatwhen he was standing trial in Sessions TrialNo. 35 of 1955 in the court of the Second Temporary Sessions Judge of Allahabad for offencesunder Sections 147 and 307 and 325/149 I. P. C., hefabricated false alibi evidence in the shape ofdocuments purporting to be certified copies obtained from the Copying Department of the KanpurCollectorate to show that on 27-10-1954 he hadappeared as a witness in a case described as Statev. Faqirey under Section 9 of the Opium Act (P. S. Collectorganj) in the court of Sri ChhatrapalSingh, Deputy Collector. The learned SecondTemporary Sessions Judge held that documentsExhts. A to E filed by Ayub as accused in supportof his plea of alibi were forged and accordinglyconvicted him in Sessions Trial No. 35 of 1955.After the decision of that case an applicationunder Section 476 Cr. P. C. was filed before thesuccessor of the Second Temporary Sessions Judge,who held an inquiry and came to the conclusionthat a prima facie case of fabrication of falseevidence was made out. for which it was expedient in the interest of justice that Ayub should beprosecuted, and accordingly made a complaint asking for Ayub to be tried for an offence under Section 193 I. P. C. The Magistrate before whom the complaint came for decision, however, held that no case was made out under Section 193 but instead there was a case under Section 471 I. P. C. The accused was accordingly committed to the Court of Sessions and has been convicted on the latter charge.

3. Before coming to the merits of the case I have to consider two legal points that have been raised by learned counsel for the accused-appellant. The first is that since the complaint made by the Second Temporary Sessions Judge was in respect of an oifence under Section 193 I. P. C. the accused could not legally be convicted under Section 471 I. P. C.; while the second is that the Judge who made the complaint (Sri Chandra Prakash was not in the eye of law 'successor-in-office' of the Judge before whom the offence is said to have been committed (Sessions Trial No. 35 of 1955 having been tried and decided by Sri Prem Prakash) and no court could take cognisance of that complaint in view of the provisions of Section 195 Cr. P. C.

4. In support of the first contention learned counsel has drawn my attention to the decision of Braund J. in Taskhir Ahmad v. Emperor : AIR1945All397 , in which it was held that a conviction under Section 193 I. p. C. could not be sustained when the complaint had been made in respect of an offence under Sections 219 and 194 I. P. C. only. It is clear, however, that that decision is based on the finding that the Judge who made the complaint-

'may very well have had in his mind in the exercise of his discretion--and in the legitimate exercise of his discretion:--that, whereas the offences under Sections 218 and 194. I. p. C. were extremely serious offences, the offence under Section 193 was more commonplace, and that it was not expedient in the interest of justice to occupy public time end public money in pursuing that particular matter further. In other words, it would appear to be a legitimate inference from what the learned Judge has said that, had the question of an offence under Section 193 stood alone, there would have been no complaint.'

In the present case no such considerations arise, since offences under Section 193 and Sections 466/471 I. P. C. are exactly on a level as far as punishment is concerned and the one cannot be deemed to be less serious than the other. The decision in Taskhir Ahmad's case : AIR1945All397 is thus clearly distinguishable. Braund J. has no doubt gone on to expound the broader proposition that complaints under Section 476 Cr. P. C. should be dealt with in a stricter manner than ordinary complaints by private persons and that the accused should be allowed to take advantage of any technical flaw in the drafting of the complaint; but with due respect I do not think that this is the proper view. To my mind, where a complaint under Section 476 Cr. P. C. recites facts which make out various offences, the accused should not be allowed to take advantage of any omission on the part of the complaining court to specify the particular section of the Penal Code applicable to the case, but should be liable to conviction under any section covered by the facts set forth unless of course there is any indication in the complaint that would justify the inference that the complaining court was deliberately abstaining from formulating a complaint under a particular section, as in the above-mentioned case of Taskhir Ahmad : AIR1945All397 . This view finds support in the case of Ram Brichha Misir v. Emperor : AIR1948All121 , decided by Dayal, J., in which it was observed :

'The misdescription of the section of the Penal Code with reference to the offence made out by the facts alleged does not vitiate the complaint, When a complaint has been made to the court under Section 195, Cr. P. C., the Criminal Court is free to frame any charge on the basis of those facts. It is the allegations of facts which constitute the complaint. Reference of specific sections relating to the offences made out by these facts is no essential ingredient of the complaint'.

A similar view has been taken in Hampana Gowd v. Emperor : AIR1936Mad280 and Provincial Government v. Gomaji, son of Badri, AIR 1944 Nag 192. The result is that I see no force in the first objection raised on behalf of the appellant in this case.

5. The second contention put forward on behalf of the accused-appellant is that only Sri Prem Prakash, the Temporary Sessions Judge in whose court the offence under Section 471, I. P. C. was committed, or the court authorised to hear appeals from Sri Prem Prakash could legally make a complaint regarding that offence. Actually the complaint has been filed by another Temporary Sessions Judge, Sri Chandra Prakash since Sri Prem Prakash had already been transferred when the application under Section 476 was made. Sri Chandra Prakash was obviously purporting to act under Section 559 (1), Cr. P. C., which lays down that:

'Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor in office.'

It is argued, however, that a Temporary Sessions Judge cannot be the successor-in-office of another Temporary Sessions Judge, even though one may be transferred from the judgeship and replaced by another and all the cases remaining on the causelist of the first Judge are taken up by the second on his assuming charge. In this connection reliance has been placed on the decision of Desai, J. in Ramzani v. State : AIR1960All350 , in which the view has been expressed that Section 559 (1), Cr. P. C. is applicable only to permanent courts, not to temporary ones. But with the utmost respect I feel that this interpretation of Section 559 is too narrow and rigid; and I find it difficult to believe that the Legislature could have intended the section to be interpreted in this restricted fashion. It seems to me that the question, being of wide importance and liable to arise in many other cases, deserves further consideration; and I accordingly direct that the papers of this case be placed before the Hon'ble the Chief Justice, so that a larger Bench may be constituted to decide the following question-

''Whether on a temporary Sessions Judge beingtransferred from a judgeship, another temporary Sessions Judge who is appointed to that judgeship and takes over the file of the transferred officer can exercise the powers of the first officer as 'successor-in-office' under Section 559, Cr. P. C. and whether as successor he can make complaints under Section 476, Cr. P. C. in respect of offences enumerated in Section 195, Criminal Procedure Code that were committed in the court of his predecessor.'

OPINION OF THE DIVISION BENCH

Uniyal, J.

6. In this case the question referred to us for decision is as follows :

'Whether cm a Temporary Sessions Judge being transferred from a judgeship (presumably meaning Sessions division) another Temporary Sessions Judge who is appointed to that judgeship (sessions division) and takes over the file of the transferred officer, can exercise the powers of the first officer as 'successor in office' under Section 559, Cr. P. C.; and whether as successor he can make complaints under Section 476, Cr. P. C. in respect of offences enumerated in Section 195, Cr. P. C. that were committed in the court of his predecessor?'

7. For a proper understanding of the question raised it is necessary to state shortly the facts of the case in which this reference has been made. The appellant was tried for the offence of attempted murder and other offences in the court of the IInd Temporary Sessions Judge (Sri Prem Prakash) who convicted the appellant, inter alia, on the finding that he had produced fabricated alibi evidence in his defence. After the decision of that case Sri Prem Prakash was transferred and his place was taken by another Temporary Sessions Judge, Sri Chandra Prakash. An application under Section 476 Cr. P. C. was then made before the latter officer for the prosecution of the appellant under Section 193, I. P. C. After holding a preliminary inquiry and befog satisfied that a prima facie case had been made out the second officer (Sri Chandra Prakash) filed a complaint against the applicant in respect of an offence mentioned in Section 195, Cr. P. C. The appellant was eventually convicted of the offence upder Section 471, I. P. C. against which he filed an appeal to this Court and the same was heard by Broome, J.

It was contended before the learned single Judge that the Temporary Sessions Judge, that is, Sri Chandra Prakash could not be the 'successor-in-office' of another Temporary Sessions Judge, that is, Sri Prem Prakash, even though the former had been appointed to the same sessions division and assumed charge of cases left on the file of the latter. Reliance was sought to be placed on certain observation made by Desai, J. (as he then was) in Ramzani v. State : AIR1960All350 , in which it was held that Section 559 (1), Cr. P. C. is applicable to permanent courts and not to temporary ones. Broome, J. was of the opinion that the view expressed in the case of Ramzani (supra) was 'too narrow and rigid' and required re-consideration and hence referred the above question for decision to a larger bench.

8. In order to appreciate the controversy it is necessary first to comprehend the scope of Section 476 Cr. P. C. Section 476 (1) is in these terms :

'Where any civil, revenue or criminal court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that inquiry should be made into any offence referred to in Section 195, Sub-section (1) 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 shall forward the same to a Magistrate of the 1st Class having jurisdiction ......,.'

Section 476 (1), Cr. P. C. which defines the form, scope and nature of the complaint mentioned in Clauses (b) and (c) of sub- (Sic) Section 476 must be read with the two clauses of Section 195 when any question about a prosecution started upon the complaint of a court arises.

9. Clauses (b) and (c) of Section 195 when read with the provisions of Sub-section (1) of Section 476 lead to the conclusion that the power under Section 476 may be exercised either by the court which tried the case in the trial of which the alleged offence was committed, or by the court to which such court is subordinate. The plain language of Clauses (b) and (c) of Section 195 itself leaves no room for doubt that the power under Section 476 may be exercised by a successor even though the trial of the case had not been conducted by him. The only limitation placed on the power of the court making the complaint is that he should be the presiding officer of the 'court'.

10. This leads us to the consideration of the question as to the meaning of the words 'presiding officer of the court'. Section 9, Cr. P. C. lays down that the State Government shall establish a court of session for every sessions division and appoint a judge (Sessions Judge) of such court, and Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in such court and to direct at what place or places the court of session shall sit. Under Criminal Procedure Code there is one 'court' in each sessions division which is manned by a number of Judges. The officers presiding over such court are described as Sessions Judge, Additional Sessions Judge, Temporary Sessions Judge, etc. and all of them exorcise the same powers in the sessions division to which they are appointed.

11. The courts have held that under Section 476, Cr. P. C. the power to direct prosecution is conferred on the 'court' and not on the particular officer who fills a judicial office at a particular time, irrespective of the fact whether the particular officer is a temporary or a permanent Judge of that court. The nomenclature given to his office cannot affect his status as Judge of the Court of Session.

12. In re Lakshmidas Lalji, ILR 32 Bom 184, their Lordships of the Bombay High Court held that the word 'court' in Section 476, Cr. P. C. means the court of session and would include the judges constituting that court and exercising the powers of court of session within the sessions division. Their Lordships observed:

'But if the 'court' taking the word in its ordinary signification, remains the same throughout, though an individual judge constituting it and performing its function may vary from time to time, we fail to perceive, with due deference, how an offence committed before that court or brought to its notice in the course of a judicial proceeding before it, ceases to be such because the individual judge who tried the case or heard the proceeding ceased to be the presiding judge of that court.'

13. In Bahadur v. Iradatullah Mullick, ILR 37 Cal 642, a Full Bench of the Calcutta High Court held that the word 'court' in Section 476, Cr. P. C. includes the successor of the judge before whom the alleged offence was committed or to whose notice the commission of it was brought in the course of a judicial proceeding. Their Lordships observed :

'There is nothing in that section to warrant the withholding from the word 'court' its natural meaning with the sense of continuity this implies, notwithstanding any change of officers.'

14. In Superintendent and Remembrancer of Legal Affairs, Bengal v. Izatullah Paikar : AIR1931Cal190 , the Additional Sessions Judge of Pabna had issued notice to certain witnesses who had made false statements before him in the course of a sessions trial, to show cause why they should not be prosecuted for perjury under Section 193 I. P. C. The said Additional Sessions Judge was transferred from Pabna and the persons against whom notice had been issued appeared before the Sessions Judge of Pabna and showed cause in respect of the notice. Thereupon the Sessions Judge made a formal complaint against them under Section 193 I. P. C. In appeal it was contended on behalf of the appellants that the Sessions Judge of Pabna had no power to make the complaint under Section 476(1) because the offence, if any, had been committed not in his court but in the court of the Additional Sessions Judge. The objection of the appellants was overruled by their Lordships and it was held that the offence under Section 193 I. P. C. was committed, if at all, before the court of session at Pabna and the complaint was made by a judge of that court. Their Lordships pointed out:

'It is inaccurate to refer to the 'court of the Sessions Judge' and the 'court of the Additional Sessions Judge,' and so on, except colloquially. Just as in the High Court we do not refer to the constituent courts as the courts of any particular Judge, either 'permanent' or 'additional,' it is one court of session which is constituted by a number of judges.'

They were of opinion that the Sessions Judge of Pabna was competent to make the complaint under Section 476(1) of the Code, even though the offence in respect of which the complaint had been made was committed in the court of the Additional Sessions Judge.

15. In Kasturbai v. Vanmalidas Lakshnridas, ILR 49 Bom 710 : (AIR 1952 Bom 436) Mulla, J. of the Bombay High Court issued notice to one of the parties to show cause why he should not be prosecuted for the offence of perjury for having made a false statement before him. After issuing the rule Mulla J. retired as Judge of that court. The matter then came before Crump, J. of that High Court, and it was contended that he (Crump J.) had no jurisdiction to dispose of the rule granted by Mulla, J. The question that arose for consideration in that case was whether the word 'court' in Section 476 must be taken to mean the High Court Or the individual Judge before whom the offence was committed. It was held that:

'The expression 'court' for the purpose of Section 476(1) Cr. P. C. must be taken to mean 'High Court,' and if that is so as any Judge of the High Court has power to exercise powers of the High Court it would follow that any Judge could dispose of an application under Section 476 whether the matter out of which the action arose was heard by him or some other Judge of the Court. No doubt as a matter of convenience that would seldom be done but where, as in the present case, the Judge has ceased to hold office I see nothing in the language of the section to preclude any Judge from disposing of such matter as is now before me.'

16. The same view was expressed by the Madras High Court in Varadarajulu Naidu v. Emperor : AIR1937Mad716 . In that case during the trial of a civil case before the Chief Justice it was found that certain documents were fabricated and had been used by one of the defendants in the suit knowing them to be such. The Chief Justice directed & complaint to be filed against the defendant under Section 466 of the I. P. C. Due to some error no formal complaint was filed with the result that the proceedings were quashed. Subsequently a written complaint was, duly filed by an order of the officiating Chief Justice in the absence of the Chief Justice. Objection was taken to the validity of the complaint on the ground that the officiating Chief Justice was not the court before whom the offence had been committed. Their Lordships while overruling the objection observed as follows;

'The order was in terms passed under Section 476 Cr. P. C. and the real question is whether the officiating Chief Justice has no jurisdiction to pass the order. The complaint required by Section 195 Cr. P. C. is the complaint of the court in which the documents were given in evidence, and not of the trial judge, and as pointed out in ILR 49 Bom. 710: (AIR 1925 Bom 438) when a suit is tried by a Judge of the High Court the term 'court' occurring in the section must be deemed to mean 'High Court.' There is nothing to prevent any Judge of the High Court from dealing with the matter though as a matter of convenience this would seldom be done, and the matter was in this case placed before the officiating Chief Justice as the trial judge was absent at that time.'

The above discussion leads to the conclusion that an officer who is exercising the powers of a 'court of session' would be competent to file a complaint under Section 476 in respect of an offence committed in or in relation to a proceeding before another officer of that court. In such a case it is wholly immaterial whether the officer concerned is a temporary or permanent incumbent of that court. The real test is whether the second officer, like the first, is a presiding Officer of that court It would, in our opinion, be immaterial whether the judge or the officer filing the complaint is successor in office of the first officer or not.

17. Section 559(1) Cr. P. C. provides that the powers and duties of a judge or magistrate may be exercised or performed by his successor in office. It will be seen that the powers under the Code have been conferred on courts and not on individual judges or magistrates. Therefore, in order to determine whether a judge or magistrate is 'successor in office' what has to be seen is whether the particular judge or magistrate can be considered to be a presiding officer of the court over which his predecessor exercised jurisdiction. The circumstance that a particular judge or magistrate is a temporary or permanent incumbent is not a relevant consideration, and cannot make any difference to his status as a 'court.'

18. On the facts of the case as here it appears to us clear that the second Temporary Sessions Judge (Sri Chandra Prakash) was the successor of the first officer (Sri Prem Prakash) before whom the offence was committed. The Sessions Judge had actually allotted to him the entire case work on the file of the first officer and thus determined his status as successor under Section 559(3) Cr. P. C.

19. The case of : AIR1960All350 has really no bearing on the facts of the present case. There the court was considering the powers and duties of magistrates in general and had expressed the view that there is no permanent court of the magistrate of 1st class created as such and mere-fore it cannot be said that the court of one magistrate is the same as the court of another magistrate exercising jurisdiction over the same territory. It was observed in that case that

'Since the court of a magistrate of the 1st Class is not a permanent court the Government has the power of creating as many courts' as it likes and can go on changing their territorial limits.'

Mr. Justice Desai (as he then was) was, therefore, of opinion that a Magistrate of the 1st Class as such could not be said to be an officer presiding over a court in the strict sense of the term. It was, therefore, held that a Magistrate could not make a 'complaint under Section 476 Cr. P. C. in respect of an offence mentioned in Section 195 Cr. P. C. committed before another magistrate.

20. We think that where a magistrate is presiding over a 'court' and is succeeded by another in a temporary vacancy the latter, if invested with the powers of the court over which the first officer presided, would be competent to file a complaint under Section 476 Cr. P. C. The nature of his appointment, though temporary, would not in our view affect his powers as the presiding officer of that court.

21. In Kartik Chandra Maity v. Emperor, AIR 1932 Pat 175 the Sub-Divisional Officer of Jamshedpur received information of an alleged offence and took cognizance of that offence and directed issue of a warrant of arrest against certain persons. In the meantime he left the station temporarily on duty. The State Government appointed one Mr. Chatterji, a 1st Class Magistrate; to perform the duties of the Sub-Divisional Officer during Ms absence. He signed the warrant in the absence of the Sub-Divisional Officer as required by Section 75 Cr. P. C. There was unlawful resistance to the execution of the warrant and the persons concerned were prosecuted find convicted. It was contended before the High Court that Mr. Chatterji who had signed the warrant was not the presiding officer of the court of the Sub-Divisional Officer and, as such, he had no authority to issue the warrant.

22. The Patna High Court repelled the contention and held that where a magistrate is appointed by Government with power to take cognisance of offences and to perform the functions of the Sub-Divisional Officer while the latter is away from the station, he is the presiding officer within the meaning of Section 75, Cri. P. C. It was pointed out that although under Section 204 Cr. P. C. only the magistrate who has taken cognisance of an offence may direct the issue of warrant, nevertheless, the magistrate who signs the warrant, provided he comes within the term 'presiding officer' may sign the warrant although he may not have been the particular individual who has taken cognizance of the offence. The mere fact that in that case Mr. Chatterji who signed the warrant was holding charge of the Sub-Divisional Officer temporarily did not make any difference to his powers as the presiding officer of that court.

23. We think that the view taken by the Patna High Court is in consonance with the provisions of the Code, We are clearly of opinion that a Temporary Sessions Judge who takes over the file of another Temporary Session, Judge in the same sessions division is to all intents and purposes a presiding officer of the court of session and, as such, exercises the powers and performs the duties of that court. He can, therefore, make a complaint under Section 476 Cr. P. C. in respect of the offences falling under Section 195 Cr. P. C. that were committed in the court of his predecessor.

24. The answer to the question referred to us must therefore be in the affirmative.

(Final order of Broome J. D/-20-3-61 isomitted as not being necessary for the purposesof this report.)


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