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Bal Kishan JaIn and ors. Vs. Indian Overseas Bank and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1981CriLJ796
AppellantBal Kishan JaIn and ors.
RespondentIndian Overseas Bank and ors.
Cases ReferredEmperor v. Varjivandas
Excerpt:
.....code and in section 436 of the earlier code does not envisage within it either a direction to the trial magistrate to summon the person accused or frame a charge against him and to put him on trial. 1968 cri lj 1257. 15. with great respect it appears to me that the aforesaid patna view is not tenable either on principle or on the language of the provision and is clearly contrary to the overwhelming weight of precedent in the other high courts. first it deserves highlighting that the patna view seems to have lost sight of section 4(k) of the code which clearly lays down that the word 'enquiry' means every enquiry other than a trial conducted under the code by a magistrate or court. the aforesaid provision also is a pointer to the fact that the framers of the code were well aware of the..........and 399 of the code of criminal procedure. 1973. envisage within their ambit a direction to the trial magistrate to summon the persons accused before him or if already so summoned to frame a charge against them and put them on trial is the significant question which has necessitated this reference to the division bench.2. the facts relevant to the controversy are not in serious dispute. the indian overseas bank, respondent no. 1, and its branch manager shri j.r. tutlari had jointly preferred a complaint under sections 406, 420/34 and 120b of the indian penal code alleging that the four petitioners, namely, bal kishan jain; smt. prem lata jain; prem nath and hem chand jain had dishonestly misappropriated the goods hypothecated with the respondent-bank under an agreement and had thereby.....
Judgment:

S.S. Sandhawalia, C.J.

1. Whether Sections 398 and 399 of the Code of Criminal Procedure. 1973. envisage within their ambit a direction to the trial Magistrate to summon the persons accused before him or if already so summoned to frame a charge against them and put them on trial is the significant question which has necessitated this reference to the Division Bench.

2. The facts relevant to the controversy are not in serious dispute. The Indian Overseas Bank, respondent No. 1, and its Branch Manager Shri J.R. Tutlari had Jointly preferred a complaint under Sections 406, 420/34 and 120B of the Indian Penal Code alleging that the four petitioners, namely, Bal Kishan Jain; Smt. Prem Lata Jain; Prem Nath and Hem Chand Jain had dishonestly misappropriated the goods hypothecated with the respondent-Bank under an agreement and had thereby intentionally cheated them. It was further alleged that the offence had been committed in concert and in conspiracy, with Sat Pal, Kewal Krishan, Mohinder Kumar, Salaish Gupta and Rakesh Gupta, who were also arrayed as accused persons in the complaint.

3. The learned Chief Judicial Magistrate, Rohtak, before whom the matter came up in the first instance after re-cording the preliminary evidence produced on behalf of the complainants dismissed the complaint under Section 203 of the Code of Criminal Procedure on the finding that the case was one of a purely civil nature and the complaint appeared to be an attempt to press in aid the machinery of criminal law for pressurising the petitioners to pay the amount.

4. Aggrieved by the above order, the respondent-Bank and its Branch Manager preferred a revision petition in the Court of Session at Rohtak. The learned Sessions Judge by his order dated the 7th of Nov., 1978, accepted that revision petition and sent the case back to the trial Court for affording an opportunity to the complainants to produce additional evidence in support of their complaint and further directed that the Magistrate should proceed to dispose of the case after discussing the earlier statements of three witnesses and in particular that of P. W. 3 S. R. Yadav. In compliance with the aforesaid direction the matter came up before Shri P.C. Goel. Judicial Magistrate, Ist Class, Rohtak, However, after allowing the complainants to produce additional documents D. 5 to D. 13 and discussing the earlier evidence he again came to the conclusion that the matter was a civil dispute between the parties in respect of the amount in question and consequently there were no grounds to proceed against them and dismissed the complaint under Section 203, Criminal Procedure Code.

5. The respondent-Overseas Bank and another then preferred another revision petition against the aforesaid dismissal which was ultimately heard by the Additional Sessions Judge, Rohtak. on a consideration of the matter he came to the conclusion that the criminal intent on the part of the accused persons from the very outset stood well established The operative part of the order which is now under challenge is in these terms:

Without dilating further on the points raised before me I accept the revision petition and direct that the accused persons should be put to trial.

6. This revision petition first came up before Sidhu J., sitting singly and the contention was seriously pressed before him that Section 398 of the Code did not warrant a direction to put the accused on trial and at best only a further enquiry into the matter could be ordered. Noticing a conflict of precedent on the point the case was referred for an authoritative decision by a larger Bench and that is how the matter is before us.

7. At the very outset I may mention that it appears that before the learned single Judge the issue seems to have been canvassed narrowly on the scope of Section 398 of the Code alone. However, before us the argument was inevitably extended to the joint scope of Sections 398 and 399 because the latter section now prescribes the larger field of the revisional powers of the Court of Session under the new Code. It is this fact which has indeed necessitated the modification of the legal question noticed in the reference order as it appears to us that the issue is one which is indivisible.

8. Inevitably the controversy herein must revolve around the specific language of the statutory provisions. It is, therefore, necessary to first read Section 398 of the Code:

On examining any. record under Section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or Sub-section (4) of Section 204, or into the case of any person accused of an offence who has been discharged:Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.

Now to appreciate the true legal position, it may first be highlighted that the afore-quoted Section 398 is in pari materia with Section 436(1) of the Code of Criminal Procedure 1898 and with Section 437 of the earlier Code of Criminal Procedure 1882. The very core of the question is the true import of the phrase 'further inquiry' as used in Section 398 and the corresponding sections of the predecessor Codes. On this issue, it appears to me that/it would now be patently wasteful to launch on along dissertation on principle because the matter has been the subject of examination in erudite judgments ranging from the last century till now. It would suffice, therefore, to examine the validity of the mass of precedents on the point and to indicate the preference for the specific construction where there is a patent divergence of judicial view. However, I may make it clear at the very outset that this conflict of judicial opinion is now rendered more of academic interest in view of the material amendments made by the Code of 1973 and in particular by the insertion of Section 399 of the Code with regard to the revisional powers now exerdsable by the Court of Session. Nevertheless to arrive at a correct perspective and to resolve the undoubted conflict of judicial precedent, it becomes necessary to advert, however briefly, to some salient judgments on the point.

9. That the issue, which is now be-fore us was a contentious one even under the earlier Code of Criminal Procedure 1882 is evident from the celebrated Full Bench judgment of eight Judges in Hari Dass Sanyal v. Saritulla (1888) ILR 15 Cal 608, The learned Judges were not unanimous on the issue before them but for our purposes it suffices to notice that the majority took the view that under Section 437 of the Code of 1882 a 'further enquiry' or a rehearing upon the same materials which were before the Magistrate, even though no further evidence could be forthcoming, could be directed. However, Chief Justice Petheram, Justice Wilson (who wrote the main judgment) and Justice Ghose clearly took the view that further enquiry under this section could not warrant a direction to frame a charge and proceed to trial by the Court of Session and this could only be compelled by the High Court in its larger revisional jurisdiction. Chief Justice Petheram observed as follows:

But if and when the revising office is satisfied that all the materials which can be collected have been collected, I do not see how he can direct the Subordinate Magistrate to make further enauiry, the next step, being to frame a charge, which is a proceeding subsequent to the completion of the enquiry, the taking of which, as it seems to me, can only be compelled by the High Court.' And Wilson, J.. held as under:The meaning of 'further enquiry has still to be considered. The word 'enquiry' is one of frequent occurrences in the Code. The definition in the interpretation clause is very wide, and in some sections of the Act it certainly includes trial. If that meaning were adopted here, it might be that Section 437 would authorise a Sessions Judge or District Magistrate, not only to order further enquiry preliminary to trial, but also to order a charge to be framed and the trial of that charge to proceed. The word is often, however, used in a more specific sense, to denote the enquiry before a Magistrate preliminary to trial, which regularly results in a charge or a discharge. I am not prepared to adopt any but the narrower sense in the present section.

10. Even though some aspects of Hari Dass Sanyal's case (supra) were not wholly concurred in by a later Full Bench Judgment in Narayanaswamy Naidu v. Emperor (1909) ILR 32 Mad 220 : 9 Cri LJ 192. (with regard to the corresponding provisions of the Code of 1898) all the three learned Judges composing the Bench unreservedly agreed with the afore-quoted view. The specific question posed before the Full Bench was formulated as follows in the order of reference:

Whether in a case where the District Magistrate or the Sessions Judge considers that a Magistrate is wrong in discharging an accused and a prima facie case is made out against the accused he is entitled to frame the charge or order the Magistrate to frame the charge and try him.

I am of opinion that even under the old Code he had no such right and under the new Code, for reasons already stated, he cannot do so.

To this Mallis, J. who wrote the main judgment, returned the undermentioned answer which apparently has also been concurred in by Sankaran Nair, J.:

As regards the second question. I am of opinion that the Sessions Judge or district Magistrate cannot in the exercise of the power to order further enquiry under Section 437 himself frame the charge or order the Magistrate to frame the charge or try the accused

11. The identical issue then arose before a Full Bench in Emperor v. Mauna Ba Thon AIR 1931 Rang 225 : 32 Cri LJ 950 and Chief Justice Page categorically held as follows':

I am further of opinion that in an order for further inquiry passed under Section 436 no directions 'or instructions can lawfully be given to the Magistrate as to the manner in which he should conduct the inquiry. The Magistrate must exercise the power that he possesses in that behalf according to law. It is the function of the Magistrate to determine whether or not process shall issue or a trial take place, and his discretion in the matter is not to be fettered by instructions or directions from any quarter.

12. The only judgment of the predecessor Court of Lahore which had been brought to our notice is Ibrahim v. Guran Ditta Mal. AIR 1932 Lah 362 : 33 Cri LJ 341. Herein also Broadway J., had categorically opined that Section 436 of the Code of Criminal Procedure did not empower a Court of Session to direct the trial Magistrate to either frame a charge and to try the accused person. In this Court a similar view has been taken by Gurnam Singh J., in Gian Chand v. State of Haryana Cr. M. 2046-M of 1978 decided on Che 22nd of August. 1978.

13. It will be evident from the above that the weight of precedent seems to be clearly in favour of the view that the term 'further enquiry' used in Section 398 of the present Code and in Section 436 of the earlier Code does not envisage within it either a direction to the trial Magistrate to summon the person accused or frame a charge against him and to put him on trial.

14. Nevertheless it becomes necessary to notice a discordant note which had undoubtedly been struck by the Patna High Court. Therein first in Udit Narayan v. Emperor AIR 1938 Pat 369 : 39 Cri LJ 778. Mohamad Noor J.. observed that further enquiry under Section 436 had come to acquire a technical meaning and it implied reconsideration of the material before the trial Court. However, he added by way of a gloss that in a case in which a complaint had been dismissed after a complete enquiry the order of the superior Court for further enquiry can only be complied with by putting the accused on trial. No principle or authority appears to have been cited for this observation and it is plain from the judgment that the matter was not considered in any great depth. The Division Bench judgment in Udit Narayan Pat-wari's case was inevitably followed by Chief Justice Das in Brijnath Sahai v. Babu Lal 1957 Cri LJ 290, but he slightly elongated the obesrva-tion therein by holding that any other interpretation would lead to an impasse. Later another, single Judge of the Patna High Court followed the aforesaid view in Abu Bakkar v. Belal Sheikh. 1968 Cri LJ 1257.

15. With great respect it appears to me that the aforesaid Patna view is not tenable either on principle or on the language of the provision and is clearly contrary to the overwhelming weight of precedent in the other High Courts. First it deserves highlighting that the Patna view seems to have lost sight of Section 4(k) of the Code which clearly lays down that the word 'enquiry' means every enquiry other than a trial conducted under the Code by a Magistrate or Court. The term 'further enquiry, therefore, obviously has to be construed in the light of this definition. The Code now draws a clear line of distinction between 'enquiry' and 'trial'. If further enquiry would include within its ambit a direction to frame a charge and then proceed to trial then plainly the demarcation laid out by the statute between enquiry and trial would he wiped out.

16. A reference in this connection may also be made to the powers conferred on the appellate Court by the present Code in Section 386 which is in pari materia with Section 423 of the earlier Code of 1898. Sub-section (a) of Section 386 of the Code is in the following terms:

386. x x x x x(a) in an appeal from an order of acquittal, reverse such order and direct that further enquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law.

From the plain language of the above provision it would be evident that the statute envisages 'further enquiry' as something distinct from a trial or a commitment for trial. If further enquiry were synonymous with or included within its ambit, a 'retrial' or 'commitment for trial' then the aforesaid Sub-section (a) would not have tautologously repeated these terms. The aforesaid provision also is a pointer to the fact that the framers of the Code were well aware of the line of distinction between a mere 'further enquiry' and that of a 'trial', 'retrial' or 'commitment for trial'.

17. The other rationale for the Patna view appears in the following observations of Chief Justice Das in Brijnath Sahai's case. 1957 Cri LJ 290 (Pat):

Otherwise the result may be an absurd and impossible position. Suppose an order of dismissal is passed after a judicial enquiry, and the superior Court directs a further enquiry, the Sub-divisional Magistrate again holds a second judicial enquiry and again dismisses the complaint) under Section 203, again the Sessions Judge directs a further enquiry and the Sub-divisional Magistrate holds a third, judicial enquiry. If the process goes on in this way, the result will be an impasse. Obviously that cannot be the meaning of a further enquiry directed by a superior Court.

A closer analysis and in-depth examination of the aforesaid observations, however, would bring out the fact that the apprehension of an impasse does not seem to be well founded. Under the earlier Code so far as the High Court is concerned there seems to be no manner of doubt that in its larger revisional powers under Section 439 it could always direct! the framing of a charge and putting the accused person on trial or to be committed for trial. Therefore apart from Section 436 of the old Code the High Court would always be in a position to resolve any difference of opinion with the trial Court in its favour by giving such a direction not under Section 436 but under the larger revisional powers under Section 439. Even as regards the Court of Session the impasse theory is not of great validity. Under the earlier Code the Court of Session always had the power to report the matter to the High Court and the latter could then pass the necessary orders under Section 439 of the Code. The Patna judgments, therefore, again fail to take note of the larger revisional powers of the High Court under Section 439 and the power of the Court of Session to report and recommend to the High Court for a direction to summon or to frame a charge or to proceed to trial. Therefore any deadlock on this point was easily resolvable in favour of the superior Court.

18. In this context it then deserves highlighting that there seems to be little and indeed no doubt whatsoever that apart from the power to direct 'further enquiry' under Section 436 of the old Code, the larger revisional powers of the High Court under Section 439 always included within its ambit a direction to summon a person wrongly discharged and further to frame a charge against him and put him on trial or comit him therefor, if necessary. In Empress v. Ram Lal Singh (1884) ILR 6 All 40, Straight J., categorically held that High Court has power under Section 439 of the Criminal Procedure Code of 1882 if it considers that an accused person has been improperly discharge to order him to be committed for trial. Following the said view, a Full Bench in Public Prosecutor v. Ponnuswami Nayak AIR 1928 Mad 1267 : 30 Cri LJ 184. observed that Section 439 of the Criminal Procedure Code conferred on the High Court the powers granted to a Court of Appeal under Section 423 and one of the powers so granted is that of directing an accused to be committed for trial. Earlier a similar view had also been taken by a Division Bench of the Bombay High Court in Emperor v. Varjivandas (1903) ILR 27 Bom 84. It would be thus manifest that both on the language of the statute and authoritative precedent the High Court has always been clothed with the revisional powers of directing that a person wrongly discharged shauld be summoned or that a charge be framed against him and he be brought to trial.

19. In view of the above, with the greatest respect, therefore, I would dissent from the Patna view and in line with the weight of precedent hold that the term 'further enquiry' does not warrant a direction to the trial Magistrate to either summon the accused person or to frame a charge against him and proceed to trial thereafter.

20. Though I have held as above it is equally manifest, as observed earlier, that now the arena of controversy has been virtually effaced by the enactment of the Code of Criminal Procedure 1973 whereby under Section 399. the Court of Session in its revisional iurisdiction has now been clothed with all or any of the powers which may be exercised by the High Court under Section 401(1). Herein the matter does call for a brief historical perspective. The necessity for having a separate provision like Section 436 in the earlier Code is manifest. Thereunder the Court of Session in its revisional jurisdiction was primarily a reporting or a recommendatory Court and the basic revisional powers were vested in the High Court alone under Section 439. However, for the limited purpose of meeting the situation where a complaint has been wrongly dismissed as a whole or an accused had been wrongly discharged the Court of Session was given a larger power at par with the High Court, namely, that of directing further enquiry into such cases. This was done by virtue of Section 436 of the old Code. Within this narrow field it was not necessary for the Court of Session to report the matter to the High Court but it could in its own right direct further enquiry in sharp distinction to other cases where it could only recommend to the High Court for necessary action in the latter's revisional iurisdiction. Even though under the new Code the revisional powers of the Court of Session by virtue of Section 399 have been substantially equated with those of the High Court under Section 401(1) a provision in pari materia with Section 436 of the old Code has been ratained in the shape of Section 398 of the New Code. Undoubtedly now the revisional powers of the Court of Session under Sections 398 and 399 would in some field overlap each other. It is patent, however, that the Court of Session is now clothed with the revisional powers contained both in Sections 398 and 399 of the new Code,

21. Herein the significant change that has been brought about by the enactment of It he new-Code is that whereas earlier apart from directing further enquiry the Court of Session could only report the matter to the High Court for appropriate orders under its revisional iurisdiction but now it has been clothed with virtually the same powers which the High Court can exercise under Section 401(1) of the new Code. This in substance effaces very largely the sharp distinction that existed under the old Code betwixt the revisional powers of the Court of Session and those of the High Court. Now the Court of Session is by and large at par with the High Court in the exercise of the revisional jurisdiction. Consequently the Court of Session also has the same power to direct that an accused person wrongly discharged be summoned, or that a charge be framed against him and he be brought to trial, as earlier the High Court undoubtedly could do under Section 439, Once that is so, it obviously becomes academic as to which provision is to be invoked for the exercise of such power. It is well-settled by a long line of precedent that the revisional powers under the earlier Code contained in Sections 435 to 439 were to be read and construed together and not in isolated watertight compartments. What was said with regard to those provisions pertaining to the revisional iurisdiction would ring equally true with the corresponding provisions in the new Code. Therefore Sections 398 and 399 of the new Code have inevitably to be read together as one integral whole and both of them indeed supplement and dovetail into each other. Therefore, once a case is before the Court of Session in its revisional jurisdiction then the power under both Sections 398 and 399 can be exercised by it and it is immaterial and academic to investigate as to which specific provision has been actually invoked.

22. To conclude it must in strictness be held that the words 'further equiry' in Section 398 do not envisage within it the power to direct that person wrongly discharged be summoned or that a charge be framed against him and he be put on trial. However, such a power of direction is wholly within the ambit of Section 399 read with Section 401(1) of the Code which now is the repository of the larger powers vested in the Court of Session. Therefore a direction of this nature can be legally given thereunder. The answer to the question formulated at the outset, therefore, has to be rendered in the terms aforesaid,

23. Applying the aforesaid rule it is manifest that the impugned order of the Additional Sessions Judge, Rohtak, directing that the respondents should be put on trial is, therefore, well within the four-corners of Sections 398 and 399 of the Code, The revision petition is consequently without merit and is hereby dismissed.


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