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Abdul Alim Khan Abdul Aziz Vs. Sagarmal Bherajee - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 82 of 1962
Judge
Reported inAIR1963MP162; 1963CriLJ600
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 503 and 197A; Constitution of India - Article 362; Code of Civil Procedure (CPC) - Sections 133
AppellantAbdul Alim Khan Abdul Aziz
RespondentSagarmal Bherajee
Appellant AdvocateM.A. Khan, Adv.
Respondent AdvocateS.L. Garg, Adv.
DispositionApplication dismissed
Cases ReferredShaukat Ali Khan v. State of Punjab
Excerpt:
.....therefore calls for consideration in the light of the express provisions of statute, namely, the criminal procedure code and also the constitution -especially, article 362. 7. it is unsafe to apply on analogy the principles contained in the civil procedure code if a corresponding provision is not found in the criminal procedure code, in accordance with article 362, the new section 197-a of the criminal procedure code was enacted in 1951 providing that no court shall take cognizance of any offence alleged to have been committed by the ruler of a former indian state except with, the previous sanction of the central government. the corresponding provision in the civil procedure code is in section 87a applying to the rulers of former indian states the principles already contained in the..........in a criminal court, and should be examined on commission in the manner provided in section 503 criminal procedure code at his own residence. the learned magistrate having heard both the parties, felt that on grounds of reasonableness and justice, there was no case for action under section 503 criminal procedure code; if the nawab wanted to examine himself as a witness in support of his own complaint, he should come to the court like any other witness. on the legal aspect of the matter the magistrate felt that there was nothing in the law, that is, in statute or in the constitution, justifying the claim that the nawab was as of right entitled to be examined under section 503 criminal procedure code.2. though we are not directly concerned with the merits of the case, it may be noted.....
Judgment:
ORDER

H.R. Krishnan, J.

1. This is an application by the Nawab of Jaora a ruling prince, who is the de facto complainant in a criminal case before the Magistrate, Jaora, (against one Sagarmal Mahajan) actually filed by his mukhtar-am or agent. The Nawab wanted to examine himself as a witness which is in his own interest. However, he simultaneously insisted that he was a 'privileged person' exempt as of right from personal attendance as a witness in a criminal Court, and should be examined on commission in the manner provided in Section 503 Criminal Procedure Code at his own residence. The learned Magistrate having heard both the parties, felt that on grounds of reasonableness and justice, there was no case for action under Section 503 Criminal Procedure Code; if the Nawab wanted to examine himself as a witness in support of his own complaint, he should come to the Court like any other witness. On the legal aspect of the matter the Magistrate felt that there was nothing in the law, that is, in statute or in the constitution, justifying the claim that the Nawab was as of right entitled to be examined under Section 503 Criminal Procedure Code.

2. Though we are not directly concerned with the merits of the case, it may be noted that the complaint is, in the main, an allegation by the Nawab that the accused Sagarmal with whom he has pawned certain jewels, had dishonestly substituted them with cheaper articles and has thereby committed the offence of criminal breach of trust by conversion. Sagarmal's reply, it can be presumed, will be that the articles with him are the very ones pawned by the Nawab and there has been no substitution. Between the parties there has been keen litigation in the Civil Courts involving very considerable sums and each makes very serious allegations against the other of personal dishonesty. In this background the learned Magistrate was right in holding that it would not be proper and just to put the other side to the disadvantage of going to the residence of the Nawab -- the real complainant -- for cross-examining him.

3. The Sessions Judge has, however, reported that the purely legal side of the question should be examined. If the Nawab is entitled as of right to be examined on commission, he will have to be so examined if he wants to be a witness in support of his complaint. He has relied upon. Article XIII of the Covenant regarding the formation of the United State of Gwalior, Indore and Malwa printed as Appendix XXXVII in the Government of India White Paper on Indian States. It runs --

'The Ruler of each Covenanting State, as also the members of his family, shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day of August, 1947.'

The Covenant is a State Paper, but it does not become law unless it is made part of the Constitution or any statute. Actually, Article 362 of I the Constitution directs all legislatures to make laws with due regard to the guarantees given under such Covenants and agreements. Thus, it is necessary for the applicant to establish that before the date of the Covenant he, as the Ruler of the State of Jaora, was entitled to get himself examined as a witness whenever he so desired under Section 503 Criminal Procedure Code and that the Court could not insist on his personal attendance even as a witness. It may be noted even here that the applicant has not been able to show any statute or State paper or any such instrument showing that before the Covenant referred to, the privileges of the Ruler of Jaora or as for that matter, any other ruling Indian Prince included such a right.

4. This question has been fully examined in two rulings which are in conflict. The earlier is the one reported in Purshottam Vijaya v. Dilipsinghji, AIR 1953 Madh-B 254, where the Ruler of the State of Sailana wanted to get himself examined in support of his complaint. On a full examination of the question, the Court held that there was no existing privilege to this effect on the date of the Covenant. In the latter case reported in Shaukat Ali Khan v. State of Punjab, AIR 1960 Punj 565, the Nawab of Malerkotla was the de facto complainant, (through his mukhtar-am) making allegations against the accused not unlike those made in the present complaint by the Nawab of Jaora against his accused. There it was held dissenting from the Madhya Bharat decision, that the Ruler of a former Indian State was constitutionally immune from being called as a witness in a criminal Court and therefore was entitled to be examined on commission under Section 503. Upto a particular point, the line of reasoning in both the judgments is the same; but while the Madhya Bharat High Court finds on the facts no basis for the assertion that such a privilege or immunity was actually being enjoyed on the date of the Covenant, the Punjab High Court finds it in Paragraph 240 of the White Paper on Indian States, under the heading 'Guarantees regarding rights and privileges'.

5. It is therefore, necessary to see how far this paragraph is law. It is a general summary which speaks of all immunities together, whether from the civil or criminal jurisdiction, and whether from appearance as a witness, or being proceeded against, as accused or defendant, as the case may be. With all respect to the Punjab High Court, it is difficult to agree. The White Paper is not statute, and as for that matter, it is not even what can be called a 'constitutional document'. It is just a compilation. Parts of it are constitutional documents and State papers, for example, all the Covenants and agreements included in the appendix. The rest of it is a general summary of the problem and the suggestions made from time to time in regard to its solution. The book itself is divided into 12 parts on the scheme set out in paragraph 8 of the foreword to the edition of 1950. Part II describes the position of the States under the new Constitution as understood by the compiler, and not in accordance with the very words of any statute or treaty or agreement which has become the basis of statute by an article of the Constitution. Again, the entire paragraph has been quoted in the Punjab judgment, overlooking the fact that the wording is general and no attention is devoted to the separate immunities singly. It is perfectly conceivable as will be shown presently, that certain immunities are available before the Civil Court which are not available in the criminal Court, and again, the position may differ as to whether the Ruler is to be made a defendant or accused, as the case may be, or a witness, in the civil or criminal Court. Another fallacy is that a mere statement in the White Paper is not binding on the Court until it is shown that it is based on a constitutional or statutory provision.

6. The matter therefore calls for consideration in the light of the express provisions of statute, namely, the Criminal Procedure Code and also the Constitution -- especially, Article 362.

7. It is unsafe to apply on analogy the principles contained in the Civil Procedure Code if a corresponding provision is not found in the Criminal Procedure Code, In accordance with Article 362, the new Section 197-A of the Criminal Procedure Code was enacted in 1951 providing that no Court shall take cognizance of any offence alleged to have been committed by the Ruler of a former Indian State except with, the previous sanction of the Central Government. The corresponding provision in the Civil Procedure Code is in Section 87A applying to the Rulers of former Indian States the principles already contained in the immediately previous sections of the same Code with reference to foreign rulers, their envoys, and the like.

8. The analogy between the two Codes stops there and does not proceed farther when we are concerned with summoning witnesses. In the Civil Procedure Code there is Section 133 empowering the State Governments to notify persons exempted from personal appearance in any Court. Such a person would obviously be examined on commission. But in the Criminal Procedure Code we have only the general Section 503 which leaves the discretion to a Magistrate. If that discretion is exercised in ordering examination on commission, superior Courts would not lightly interfere; but where the Magistrate refuses to exercise it and the witness insists that it is his privilege, the latter has to show the relevant provision in the law.

9. Even under the general international law, a foreign Ruler cannot be compelled to appear as a witness in a criminal case. But when he himself accepts the jurisdiction of the criminal Court by filing a complaint (either personally or by proxy) and seeking its assistance in proceeding against the accused, he cannot any more urge that he should be examined as of right in a manner different from the usual one according to law. If he does not want to give evidence, he might as well not file the complaint, or let his proxy examine himself and the case dealt with without his own evidence. The question here is not whether the Court is going to compel his appearance; certainly, the Magistrate in this case will not compel his attendance and ' will not call him unless he wants to give evidence. But as already noted the case is such that his evidence is crucial and it is in his own interest to examine himself. The fact that the formal complaint is lodged on hisbehalf by a mukhtyaram makes no difference. It seems that in the case reported in AIR 1953 Madh B 254 (supra), the Ruler himself was the actual complainant while in the Punjab case the Ruler had asked his manager or mukhtar to file it on his behalf; but neither decision depended upon this purely formal difference.

10. The result is that the Court will not coerce by arrest or any such process the attendance of the former Ruler as a witness except with the sanction of the Central Government. At the same time, the Court was justified in refusing to proceed under Section 503 Criminal Procedure Code for which there is no justification on general grounds of reasonableness and none whatsoever under statute. The difference between the Madhya Bharat view and the Punjab view is there; but I would agree with the Madhya Bharat view for reasons already noted. Actually, in the Punjab case, the High Court was just supporting the discretion of the trial Court in proceeding under Section 503. In the instant case, the High Court is being invited to set aside the order of the trial Court.

11. The application is therefore dismissed.


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