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Babu Ulfat Rai Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All15; 55Ind.Cas.292
AppellantBabu Ulfat Rai
RespondentEmperor
Cases ReferredRam Piari Rai v. Emperor
Excerpt:
criminal procedure code (act v of 1898), sections 476, 537 - order directing prosecution-notice to accused, whether necessary--preliminary inquiry, failure to make, whether vitiates order--irregularity. - - in that section it is laid down that no order passed by a court of competent jurisdiction shall be reversed or altered on revision on account of any irregularity in proceedings taken under section 476, unless such irregularity has in fact occasioned a failure of justice. in other words, there must be an irregularity in proceedings followed by what under the law amounted to a failure of justice. as he had issued notice, it would have been better if he had heard anything that ulfat rai had to offer in explanation and given him opportunity for considering what he should or what his..........is whether the action of the learned sessions judge in passing the order under section 476 of the code of criminal procedure was contrary to law. according to an affidavit which will be found on the record and which is dated the 15th of september 1919, that being the date on which the affidavit was affirmed before a notary public, babu ulfat rai was served with a notice to show cause on the 20th of august 1919. as to why he should not be prosecuted under sections 193 and 196, it is asserted in the affidavit that babu ulfat rai at once applied for urgent copies of the statements of witnesses recorded in his absence against him and of other papers. these copies were not supplied to the applicant by the 1st of september 1919, the date on which the order already alluded to was passed under.....
Judgment:

George Knox, J.

1. This is an application in revision. The order I am asked to revise is an order passed by the Sessions Judge of Mainpuri. It is dated the 1st. of September 1919 and was passed in the case of King-Emperor v. Babu Ulfat Rai. That order is on the record. It directs that Babu Ulfat Rai should be prosecuted for offences falling under Section 196 of the Indian Penal Code and under Section 193 of the Indian Penal Code. It further directs under Section 476 of the Criminal Procedure Code that the case be sent down to the District Magistrate for trial by himself or any First Class Magistrate subordinate to him. There has been a great deal of argument addressed to me, but the only point that I have to consider is whether the action of the learned Sessions Judge in passing the order under Section 476 of the Code of Criminal Procedure was contrary to law. According to an affidavit which will be found on the record and which is dated the 15th of September 1919, that being the date on which the affidavit was affirmed before a Notary Public, Babu Ulfat Rai was served with a notice to show cause on the 20th of August 1919. as to why he should not be prosecuted under Sections 193 and 196, It is asserted in the affidavit that Babu Ulfat Rai at once applied for urgent copies of the statements of witnesses recorded in his absence against him and of other papers. These copies were not supplied to the applicant by the 1st of September 1919, the date on which the order already alluded to was passed under Section 476 of the Code of Criminal Procedure. That Babu Ulfat Rai applied more than once and applied in vain for adjournments to enable him to put himself in a position to show cause.

2. What then I have to determine is whether the order passed on the 1st of September 1919 is correct, legal, proper or otherwise and whether the proceedings of the Court passing the order have been regular. The Court which passed the order was, as has been already noticed, a Criminal Court. The officer presiding in that Court was an officer of experience and standing.

(1) He had jurisdiction to pass an order under Section 476 of the Criminal Procedure Code.

(2) If he considered it necessary, he had to make a preliminary enquiry.

(3) And then to send the case for enquiry or trial to the nearest Magistrate of the First Class.

3. There is nothing in Section 476 which requires a Criminal Court, before passing an order under Section 476, to issue notice upon the accused to show cause why action should not be taken under Section 476. So far then the proceedings taken by the Sessions Court appear to have been regular throughout. The order passed appears to have been correct and legal. It only remains for me to decide whether the order, considering the circumstances under which it was passed, was proper.

4. In connection, however, with this it is necessary also to consider what has been laid down by the law in Section 537 of the Code of Criminal Procedure. In that section it is laid down that no order passed by a Court of competent jurisdiction shall be reversed or altered on revision on account of any irregularity in proceedings taken under Section 476, unless such irregularity has in fact occasioned a failure of justice. In other words, there must be an irregularity in proceedings followed by what under the law amounted to a failure of justice.

5. Notice was called by the applicant to what he considered irregular at a very early stage in the proceedings.

6. To return to whether the passing of the order under Section 476 was an irregular proceeding. This Court has in a previous case, vide, Ram Piari Rai v. Emperor 16 Ind. Cas. 515 : 10 A.L.J. 247 : 13 Cr. L.J. 707 held that 16 Ind. Cas. 515 : 10 A.L.J. 247 : 13 Cr. L.J. 707 there is nothing in Section 476 which requires that notice shall be given to a person who is immediately concerned thereby, and (2) that this Court has always looked with disfavour upon an order made under Section 476 without notice being given to the persons immediately concerned. But there is considerable distanae between looking with disfavour npon an order and reversing the order as being an order oontrary to law.

7. The circumstances before me are peculiar. There had been a long and elaborate trial resulting in a very considered judgment, and in that judgment the circumstances are set out which, in the opinion of the learned Sessions Judge, sailed upon him to pass the order which he did on the 1st of September 1919. It is not a case in which it can be said that the Judge had not looked at length into the proceedings antecedent to the order he passed. When he issued the notice on the 12th of August 1919, he was in the act of setting forth his judgment and the reasons for his judgment in the main ease. He was then of opinion that an offence had been committed under Sections 196 and 193, Indian Penal Code. He was, as that judgment shows, making a mental enquiry and by the 1st of September 1919 when he passed his order he had arrived at the conclusion that an order under Section 476 was called for. He had come to the conclusion that no preliminary enquiry was necessary and appears to have acted upon this conclusion. As he had issued notice, it would have been better if he had heard anything that Ulfat Rai had to offer in explanation and given him opportunity for considering what he should or what his advisers should say.

8. Section 476 lays down a peculiar form of procedure. Instead of the alleged offence being sent to the Court which, having regard to the provisions of Chapter XV of the Code, would have jurisdiction to try, the Court under Section 476 has to send the case for inquiry or trial to the nearest Magistrate of the First Class, and such Magistrate shall thereupon proceed, &c; all this points to the intention that the trial should be held without any unnecessary delay.

9. It must always be remembered that the Judge was not trying the case or entering himself upon proceedings to determine the offences under Sections 193 and 193. He was not depriving the accused of making a full and complete answer to such trial of those offences as might be entered upon. He was not depriving Ulfat Rai of opportunities to give his answer to the charge. The utmost that could be urged was that Ultaf Rai, by not having been given an opportunity to show cause, was put in peril of a longer trial than might perhaps be actually necessary. His action in passing the order under Section 476 was not in fact occasioning a failure of justice. There had been long drawn out proceedings which called for as early a decision as possible.

10. Acting under the provisions of Section 537 of the Code of Criminal Procedure I am not prepared to alter the order passed and I reject this application.


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