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Hiralal JaIn Vs. the Delhi Administration, (The State) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Judge
Reported in1971CriLJ1375
AppellantHiralal Jain
RespondentThe Delhi Administration, (The State)
Cases ReferredRajpal Singh v. Jai Singh
Excerpt:
.....where much can be said on both sides it would be for the sessions court and not for the committing magistrate to interfere with the ultimate evidence and it would be safe for the committing magistrate to send the accused on for trial by the court of sessions. 13. that is what the supreme court has clearly stated in the case cited before me......complaint of mr. dhamija were simultaneously forwarded to the court. section 190 of the code of criminal procedure is:-cognizance of offences by magistrate.-(1) except as hereafter provided, any presidency magistrate, district magistrate or sub-divisional magistrate, and any other magistrate specially empowered in this behalf, may take cognizance of any offence-(a) upon receiving a complaint of facts which constitute such offence;(b) upon a report in writing of such facts made by any police officer;(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.(2) the state government or the district magistrate subject to the general special orders of the state govern- ment, may empower any.....
Judgment:
ORDER

Pritam Singh Safeer, J.

1. This petition was preferred to assail the order dated the 20th Dec. 1968, and was admitted by my brother P. N. Khanna, J. on the 2nd of July, 1969, when the order passed was:-

Notice. Further proceedings stayed meanwhile. File to be called.

No certified copies were filed when this-petition was preferred. No certified copies have been filed till today. There is no order relieving the petitioner of the responsibility of filing the certified copies. As a matter of procedure and practice it is erroneous that criminal revision petitions be urged without filing certified copies of the impugned orders. I may have dismissed this petition on this score but having heard Mr. Hira Lai Jain, who is appearing in person, I would like to deal with the submissions which he has made and would dispose of the petition on merits.

2. Mr. Jain opened his address by submitting that the very order which he is attacking i. e., the order dated the 20th December, 1968, is a forged order. I told Mr. Jain that he could have an opportunity of filing an affidavit detailing the reasons for the assertion as to how the order dated 20th December, 1968, is a forged order. He is not prepared to do that. He insists at the same time that the order committing him is a forged one.

3. At an earlier stage Mr. Jain had filed a petition Under Section 561-A for quashing the entire proceedings initiated in the courts below against him along with his other five co-accused. Although that petition was concerned with his own grievance the same had the repercussions in respect of the entire trial. The same was dealt with by Jagjit Singh, J., and dismissed by a detailed judgment dated the 6th of September, 1967.

4. The first grievance raised before me is that Mr. D. R. Dhamija had complained to the police regarding the alleged offence. The police found that the offence covered by Sections 205/114 was a non-cognizable offence and indicated that Mr. D. R. Dhamija should file a complaint against the present petitioner and others. I find from a perusal of the challan dated the 18th of October, 1966, that the challan and the complaint of Mr. Dhamija were simultaneously forwarded to the Court. Section 190 of the Code of Criminal Procedure is:-

Cognizance of offences by Magistrate.-(1) Except as hereafter provided, any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.

(2) The State Government or the District Magistrate subject to the general special orders of the State Govern- ment, may empower any Magistrate to take cognizance under Sub-section (1), Clause (a) or Clause (b), of offences for which he may try or commit for trial.

(3) The State Government may empower any Magistrate of the first or second class to take cognizance under Sub-section (1), Clause (c) of offences for which he may try or commit for trial.

5. The Magistrate had before him a police report with which he was to deal by taking cognizance in terms of Clause (b) of the provisions, reproduced above. He also had a complaint by Mr. D. R. Dhamija and he did take cognizance in terms of Clause (a) of Section 190, reproduced above. The commitment order, which is being assailed, does not confine itself to Section 207-A of the Code of Criminal Procedure. In the peculiar situation where the court was dealing with a police report as well as a complaint, it recorded evidence and on recording the evidence of witnesses came to the conclusion that it disclosed that the offences punishable Under Section 467 read with Section 471 of the IPC had also been committed. The court was seized of the case as such and was competent to direct that the accused be tried for the offences made out by the prosecution evidence. The offences Under Sections 467/471 of the Indian Penal Code being exclusively triable by the court of Sessions the trial court acted lawfully in committing the accused persons for being tried by the court of Sessions.

6. The case was that while Mr. D.R. Dhamija was functioning as Additional District and Sessions Judge, Delhi, all the six accused persons conspired together to practice fraudulent inducement. They cheated Mr. D. R. Dhamija by practicing not only impersonation but by committing forgeries inasmuch as fictitious persons were substituted for the real ones and Mr. Hira Lai Jain, who happened to be practicing at the bar, produced those fictitious persons while writing on one of the applications as under:-

I personally know Nand Lai son of Gopal. He has signed in my presence. In case of wrong payment I shall be responsible to refund the amount. Hira Lai.

7. The offences were committed in 1964. More than six years have gone by and the trial remains deferred. That is so because remedies have been invoked and stay orders have kept the trial from taking place. There was impersonation, as well as clear misrepresentation. When actual payments were received the conspiracy reached the stage of forging the thumb impressions and signatures of real persons. For all the offences that each one of the conspirators committed the conspiracy itself provided the background.

8. While dealing with the police report and the complaint of Mr. Dhamija the committing court was faced with a bunch of facts constituting one conspiracy. There is no error whatsoever in the committing order allowing it to be attacked on the ground that the procedure applicable Under Section 207-A of the Code of Criminal Procedure or that applicable in terms of Sections 208 and 209 of the Code of Criminal Procedure had not been observed. If those provisions are closely scrutinised it becomes visible that after the amendment and addition of Section 207-A the real difference caused is that while dealing with a police report the court has to go through a detailed procedure before reaching the stage under Sub-section (10) of the Section 207-A when an order of commitment may be recorded. Section 208 of the Code of Criminal Procedure is :-

Taking, of evidence produced (1) In any proceedings instituted otherwise than on a police report, the Magistrate shall, when the accused appears or is brought before him, proceed to hear the complainant (if any), and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called for by the Magistrate.

(2) The accused shall be at liberty to cross-examine the witnesses for the prosecution, and in such case the prosecutor may re-examine them.

Process for production of further evidence :-

(3) If the complainant or officer conducting the prosecution, or the accused, applies to the Magistrate to issue process to ccmpe1 the attendance of anv witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so.

(4) Nothing in this section shall be deemed to require a Presidency Magistrate to record his reasons.

It is clear that the court is to record such evidence which may be produced in support of the prosecution. If 40 witnesses are cited in a calendar it is the choice of the prosecution to produce only such of those witnesses who, according to the prosecution, would suffice for making out, a case for commitment.

It is open to the accused also to apply for summoning such witnesses as the accused may indicate and no grievance is pleaded that such an application hav ing been made was disallowed. Commitment order is passed after considering the evidence which may have been produced.

9. There is nothing which rules out the passing of a composite order when the court proceeds to do so on a police report and a complaint. It was held in Pravin Chander Mody v. State of Andhra Pradesh : 1965CriLJ250 , that police is not debarred from investigating any non-cognizable offence arising out of the same facts regarding which the investigation may have initially started on account of the information disclosing a cognizable offence. The investigating officer can include the non-cognizable offence in the charge-sheet which he presents for any cognizable offence. In this case the police had along with the challan forwarded the complaint of Shri D. R. Dhamija.

10. The combination of the investigation of a cognizable offence with I a non-cognizable offence and the submission of the challan and the report regarding the non-cognizable offence do give jurisdiction to a Magistrate taking' cognizance within the meaning of Section 190 of the Code of Criminal Procedure to deal with both of them in one set of proceedings. The commitment order apparently complying with the provisions of Sections 207-A and 208 of the Code of Criminal Procedure can be a composite order. It is to be borne in mind that a commitment order does not decide the ultimate fate of the trial. It is in the nature of the framing of a charge. The accused are made aware as to in respect of which of the offences they are being committed and what are the charges which they are going to meet.

11. The trial has been held over for over six years. If there is any error I hereby rule that it will stand cured in terms of Section 537 of the Code of Criminal Procedure. I am exercising the powers conferred on the High Court Under Section 561-A of the Code of Criminal Procedure to add that this order is being made in order to secure the ends of justice. The accused are fully aware of the offences for which they are going to be tried. They will be tried in-accordance with law. There is no justification for any interference with the impugned order.

12. Mr Jain has cited before me Rajpal Singh v. Jai Singh : 1970CriLJ903 . I find that the court has indicated clearly that where much can be said on both sides it would be for the Sessions Court and not for the committing Magistrate to interfere with the ultimate evidence and it would be safe for the committing Magistrate to send the accused on for trial by the Court of Sessions. Only if there were to be no prima facie evidence or the evidence was to be totally unworthy of credit, the Magistrate may discharge the accused. But if he finds that there is some evidence on which a conviction may reasonably be based, he must commit the accused.

13. That is what the Supreme Court has clearly stated in the case cited before me. That being so, Mr. Jain derives no support from the law laid down by the Supreme Court in that case.

14. I can understand the grievance that Mr. Jain being a practicing lawyer is being harassed for a long time. While dismissing his petition it is directed that he should appear before the Sessions Judge, Delhi, on the 12th of February, 1971. The learned Sessions Judge will pass appropriate orders directing that the trial be expedited. The trial must go on from day-to-day and should be in. any event finished before the 31st of May, 1971. That will relieve the petitioner from harassment. The petitioner urges that even if all the allegations are accepted the prosecution case is not made out against him. In such a situation he deserves an expeditious trial.

15. Mr. Jain submits that a certified copy of this order should be made available to him expeditiously. It is directed that special care be taken and he should be relieved of all worry in the matter of getting a certified copy. It should be given to him within ten days of his making the application.


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