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Joseph and ors. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 182 of 1957
Judge
Reported inAIR1961Ker28
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 495(4); Indian Penal Code (IPC), 1860 - Sections 295 and 380
AppellantJoseph and ors.
RespondentState of Kerala
Appellant Advocate K.T. Thomas,; K. Achutha Menon and; T.S. Venkiteswara Iy
Respondent AdvocatePublic Prosecutor
DispositionRevision allowed
Cases ReferredBechan Jha v. Emperor
Excerpt:
.....only a curable irregularity. 24 has clearly stated that he went to the property and effected delivery of the compound together with the buildings and the other items of improvements on the property excepting a small bit of 14 cents which was under paddy cultivation at that time. on a consideration of all these aspects we are clearly and definitely of opinion that the shed which was used as a prayer hall by pw. the privilege enjoyed by the lessees and others in making use of this shed as aprayer hall could continue only as long as the lease arrangements continued. after the 1st accused, as the owner of the property, came into lawful possession of all these items, he was entitled to deal with them as he liked. after having got delivery of the property through court, the first accused must..........the main controversy between the parties centres round the question whether the shed used as a prayer hall by pw. 1 and others had in fact been delivered over to the 1st accused in this case. on this question the lower courts have preferred to accept the versionof pw. 1, that even though this prayer hall is situated in the property covered by the decree in o. s. 739/1107, this shed was not in fact delivered over to the 1st accused as per the delivery report ext. c. in accepting this version, the lower courts have placed too much reliance on the oral evidence of pw. 23 who is none other than the police officer who charge-sheeted the case against the accused and has refused to accept the documentary evidence furnished by ext. c and the oral evidence given by pw. 24 who is the amin.....
Judgment:

Sankaran, C.J.

1. This petition arises out of a prosecution for alleged offences under Section 295 and S. 380 read with Section 114 of the Indian Penal Code. Eight accused persons were tried for these offences in C. C. No. 20/1955 on the file of the First Class Magistrate's Court at Alwaye. The learned Magistrate acquitted accused Nos. 5 and 8 but convicted accused Nos. 1 to 4. The first accused was sentenced to undergo rigorous imprisonment for 3 months for the offences under Sections 295 and 380 with a direction that the sentences would run concurrently.

Accused 2 to 4 were each sentenced to undergo rigorous imprisonment for one month for the offences under Sections 295 and 380 with a similar direction, that the sentences would run concurrently. Against these convictions and sentences, accused 1 to 4 preferred an appeal (Criminal Appeal No. 62 of 1957) before the Sessions Court at Trichur and, the learned Sessions Judge confirmed the conviction, and sentence and dismissed the appeal. In the present revision petition, filed by accused 1 to 4, they have challenged the legality and the sustainability of the aforesaid convictions and sentences.

2. A garden land known by the name of Thannipuzathoppil Purayidom comprised in Sy. No. 540/5B of Perumbavoor village together with buildings thereon, was outstanding on lease with Pw. 1 and others. The lessor instituted a suit O. S.739/1107 on the file of the Perumbavoor Munsiff's Court against the lessees and obtained a decree for recovery of the property with arrears of rent. The 1st accused in the present case obtained an assignment of that decree and when he tried to execute the decree, several objections were raised to his right to get recovery of the property and buildings, by Pw. 1 who was the 11th defendant in that suit.

All these objections were eventually overruled by the Court and the property was delivered over to the 1st accused on 8-9-1951 with the help of the police as ordered by the execution court. Ext. C is the delivery report. In one portion of the compound there was a shed which was used as a place of worship by members of the family of Pw. 1 and also by other Hindus of the locality. According to Pw. 1, the aforesaid shed was used as a temple by these people and on account of their opposition, it was not delivered over to the 1st accused; while according to the 1st accused, this was also delivered over, to him as per the list Ext. C.

On 28-9-1931, the 1st accused with the help of accused 2 to 8 destroyed the shed, and carried away the pictures of the Hindu Gods which were kept in that shed for the purpose of worship. On the next day, Pw. 1 sent the petition Ext. A to the police complaining that accused 1 to 8 had destroyed and defiled the temple with the intention of insulting the religious feelings of the Hindus who were using the temple as a place of worship and that the pictures and the other articles which were held sacred by these worshippers were stolen away from the temple.

The police registered a case against the accused and, after due investigation, charge-sheeted the case against accused 1 to 8 for the offences already mentioned. The charge was at first laid before the Stationary Second Class Magistrate at Perumbavoor where the case was registered as C. C. 535/1951. Subsequently the case was transferred to the First Class Magistrate's Court at Alwaye and numbered as C. C. 20/1955.

3. The learned Single Judge who heard the revision petition in the first instance, referred it to a Division Bench and that is how the case has come before us.

4. Before proceeding to consider the legal points urged on behalf of the revision petitioners in relation to the merits of the case, we may dispose of a technical point raised by the Seamed counsel for the petitioners. The case against the accused was investigated and charge-sheeted by Pw. 23. At the trial stage, the prosecution was conducted by the very same Police Officer. This was done in violation of the express direction contained in Sub-section (4) of Section 495 of the Code of Criminal Procedure.

That sub-section states that an Officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted. The argument on behalf of the petitioners is that the entire trial of the case is illegal because it was conducted by Pw. 23 inutter, disregard of the above said mandatory provision of law.

This objection finds support from the decision reported in In re Sellamutlm Padayachi, AIR 1954 Mad 313, where it was held that a violation of the mandatory provision of Section 495 (4) is not a mere irregularity, but is an illegality. With all respect, we have to differ from that view. The direction in Section 495 (4) is to the Court trying the case find the direction is to the effect that a Police Officer who has taken part in the investigation of a case shall not be permitted to conduct the prosecution.

It is obvious that this direction is intended merely to ensure a fair trial and to see that the investigating Officer who may be naturally interested in securing a conviction of the accused, should not be put in charge of the prosecution at the stage of trial in Court. A violation of this direction can only be said to be an irregularity and it cannot be said to vitiate the entire trial unless it is shown that the irregularity has resulted in substantial prejudice to the accused.

In W. Slaney v. State of M. P., (S) AIR 1956 SC 116, the Supreme Court has pointed out the distinction between those rules of procedure which are to be regarded as vital and those which are not so vital. In that case the position has been explained as follows :

'The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice ...... If he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial, are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice ...........Under the Code as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity, they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice ........... Except where there is something so vitalas to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once.

'Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another' class of case, the matter may bo so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused.

'The distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us as unreal. The real question is not whether a matter is expressed positively or is stated in negative terms, but whether disregard of a particular provision amounts to substantial denial of a trial as contemplated by the Code and understood by the comprehensive expression 'natural justice'.'

Tested in the light of the above principles, it is clear that a violation of Section 495 (4) will not necessarily mean that there was no proper trial as required by the other essential provisions of the Code or that there has been a denial of natural justice to the accused, All that can be said to have happened is that instead of the trial being conducted by a Prosecutor who had nothing to do with the investigation of the case, the prosecution was allowed to be conducted by the Police Officer who investigated the case.

The worst that can be said is that a wholesome direction contained in Section 495 (4) was not followed. But that by itself will not render the trial illegal. We are not satisfied that disregard of that provision in this particular instance has resulted in any prejudice to the accused. In Narayana Rao v. State of Andhra Pradesh, (S) AIR 1957 SC 737, the effect of non-compliance with the provisions contained in Section 173 (4) and in Section 207A (3) was considered and it was pointed out that the word 'shall' occurring in both these sub-sections is not mandatory, but only directory.

It was also held that the omission to fully comply with the provisions in these sub-sections should not be allowed to have such a far-reaching effect as to render the proceedings including the trial before the Court of Session wholly ineffective. It was also stated that where it is shown that the omission to comply with these provisions has caused prejudice to the accused, the Court may in the interests of justice re-open the proceedings.

We think that Section 495(4) must also be understood in a similar manner and the provision contained in the section has to be taken to be not a mandatory provision but only directory in its nature. Non-compliance with such a direction can at the worst be only a curable irregularity. Since it is not shown that any prejudice was caused to the accused in this case as a result of the violation of Section 495(4), the trial cannot be said to have been illegal.

5. Coming to the merits of the case, the main controversy between the parties centres round the question whether the shed used as a prayer hall by Pw. 1 and others had in fact been delivered over to the 1st accused in this case. On this question the lower courts have preferred to accept the versionof Pw. 1, that even though this prayer hall is situated in the property covered by the decree in O. S. 739/1107, this shed was not in fact delivered over to the 1st accused as per the delivery report Ext. C.

In accepting this version, the lower courts have placed too much reliance on the oral evidence of Pw. 23 who is none other than the Police Officer who charge-sheeted the case against the accused and has refused to accept the documentary evidence furnished by Ext. C and the oral evidence given by Pw. 24 who is the Amin deputed by the civil court to effect delivery of the property as per the warrant issued to him. It is common ground that the warrant of delivery entrusted to Pw. 24 was an authority to effect delivery of the decree schedule property with all the improvements thereon.

It may be mentioned in this connection that when the 1st accused had applied for delivery of the property, Pw. 1 who was the 11th defendant in that suit, had filed a petition in Court objecting to the delivery of the property, particularly the shed which was claimed as a temple belonging to his family and used as a place of worship by the members of that family and by other Hindus of the locality. That objection was overruled by the execution court. Ext. VII is copy of the order overruling the objection and directing the delivery of the entire property together with the shed used as a prayer hall. That order was confirmed by the appellate court and Ext. VIII is copy of the order of the appellate court. In the face of these orders, it is obvious that the Amin who was deputed to effect delivery of the property was bound to effect delivery of the entire property together with all the buildings inclusive of the prayer hall which stood in the property. The Amin examined as Pw. 24 has clearly stated that he went to the property and effected delivery of the compound together with the buildings and the other items of improvements on the property excepting a small bit of 14 cents which was under paddy cultivation at that time.

His evidence is fully supported by the delivery report Ext. C and also by the oral evidence of Pw. 6 who is an attestor to Ext C. The lower courts appear to have been carried away by the absence of a specific statement in Ext. C that the prayer hall was also delivered over to the accused, in corning to the conclusion that the prayer hall could not have been delivered over. The buildings specified in the delivery report are only those buildings which have been expressly described in the decree schedule. Regarding the other items, the report makes only a general statement that all the structures and other improvements in the property have also been delivered over to the 1st accused. What is meant by the word 'structures' has also been indicated in Ext. C. After referring to the residential house from which Pw. 1 and others were vacated, the Amin has mentioned in Ext. C about the existence of the prayer hall and also a cowshed.

It is nobody's case that the cowshed was not delivered over to the 1st accused even though there is no express mention regarding the delivery of the same. If the cowshed had been delivered over as being covered by the expression 'structures' as used in the report Ext. C, there is no reason totreat the prayer-hall differently. Another significant fact about Ext. C is that it makes specific mention regarding the non-delivery of the small bit of 14 cents of property which was under paddy cultivation at that time.

Naturally, therefore, the Amin would have made a similar statement regarding the prayer hall also if it was not actually delivered over to the 1st accused or if it could not be delivered over to him. Since the objection that had been raised by Pw. 1 before the execution court to the delivery of this prayer hall had already been over-ruled as per the orders Exts. VII and VIII, the Amin had necessarily to effect delivery of this shed also.

If for any reason, the Amin could not effect delivery of that item, he would certainly have made mention of that fact in Ext. C and would have submitted a special report as to why he could not deliver that shed to the 1st accused. He has not done So and there is the direct evidence of himself and Pw. 6 that this shed was also delivered over to the 1st accused. A different story spoken to by Pw. 23 cannot be accepted as true.

The version given by Pw. 23 is that Pw. 1 and a large gathering of the devotees of the alleged temple had objected to the delivery of the shed and that on account of such objection, the Amin refused to effect delivery of that shed. The Amin does not subscribe to this version. If the version is true, one fails to see why Ext. C report is silent about it. On a consideration of all these aspects we are clearly and definitely of opinion that the shed which was used as a prayer hall by Pw. 1 and other members of his family and other Hindus of the locality, had in fact been delivered over to the 1st accused as per the report, Ext. C.

6. It has come out from the evidence in this case that the prayer hall in question came into existence some time subsequent to the lease arrangement which was terminated by the eviction decree passed in O. S. 739/1107. From the description of the shed, it is clear that the building was not a substantial one. It had only bamboo rafters and it was thatched with cadjan leaves and hay. However, there is acceptable evidence to show that this building was being used as a prayer hall by the members of the family of Pw. 1 and by other Hindus of the locality.

Pictures of Hindu deities had been affixed on the walls of the shed and poojas used to be regularly performed in the hall. All the same, it could not be said that the place had been consecrated as a place of public worship. The building and its site formed part of the entire property which its owner had leased to the family of Pw. 1. It is not anybody's case that the owner had dedicated this particular site or the shed to the Hindu public of the locality to be used as a temple or a place of worship.

The lessees who had no proprietary right over the property could not also make any such dedication. The mere fact that the lessees used the building as a place of worship and permitted such user by other Hindus of the locality could not in any way prejudice the proprietary right of the lessor over the property. The privilege enjoyed by the lessees and others in making use of this shed as aprayer hall could continue only as long as the lease arrangements continued.

A lessee by his unilateral act cannot prejudice the lessor's proprietary right in the leasehold property. Even if Pw. 1 and the other members of his family had any idea to dedicate a portion of the leasehold property to be used as a public temple, it could only be deemed to have been an unlawful act and no valid dedication could have come into existence as a result of sucfi an unlawful act of these lessees.

A similar question arose for consideration in Bechan Jha v. Emperor AIR 1941 Pat 492. There it was an attempt to bring into existence a public mosque in a plot in the possession of an agricultural tenant without the permission of the landlord. It was held in that case that the use of the hut situated in that plot as a public mosque without the landlord's permission could not make it a place of worship as contemplated by Section 295 of the Penal Code.

7. So far as Pw. 1 is concerned, his claim that the prayer hall in question was a temple dedicated to the Hindu public was urged before the civil court as a ground of objection to the delivery of the shed to the 1st accused who is the assignee-decree-holder in O. S. 739/1107. That claim was negatived by the orders evidenced by Exts. VII and VIII. 'Those orders have become final and conclusive and hence Pw. 1 cannot again put forward the same claim against the 1st accused.

We have already found that the property, along with all the buildings standing thereon, inclusive of the shed which was being used as a prayer hall, had been delivered over to the 1st accused as per the delivery report Ext. C. After the 1st accused, as the owner of the property, came into lawful possession of all these items, he was entitled to deal with them as he liked. If Pw. 1 was interested in the pictures and the other articles which were kept in the prayer hall, he ought to have removed them before the Amin delivered the hall to the first accused.

If Pw. 1 did not care to do so, he could only be deemed to have abandoned them. Articles which were thus abandoned by him, cannot be said to be articles held sacred by him.

8. The next aspect to be considered is whether the act of the 1st accused, with the help of accused 2 to 4, in pulling down the prayer hall and in removing the articles which were found therein, can be said to be a criminal offence. Even if it is assumed that the prayer hall was used by Pw. 1 and others as a place of worship and the articles therein had been held sacred by them, the act of the accused in pulling down the shed and in removing the articles can amount to an offence under Section 295 of the Penal Code only if these acts were done by the accused with the intention of insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion.

In the circumstances in which the accused pulled down the shed and removed the articles, It is difficult to attribute the aforesaid intention orknowledge to the first accused or to the other accused 2 to 4. Even according to the prosecution, accused 2 to 4 were only the agents or servants of the 1st accused and they were only carrying out his directions. After having got delivery of the property through court, the first accused must have honestly believed that, he had the undoubted right to use the property as he liked.

Obviously he did not want the shed to continue there as a prayer hall any longer. In pulling down the shed, he cannot be said to have intended or known that such an act will be an insult to the religion of others who had no manner of right Over the property or the shed. Similarly, he cannot be said to have committed an act of theft in removing the articles which were found in the shed even after the same had been delivered over to him through court. If Pw. 1 has any claim to any of these articles, he has to seek appropriate relief through a civil court.

9. From the findings recorded above, it follows that the essential elements of the offences punishable under Sections 295 and 380 of the Indian Penal Code have not been brought home to any of these accused and that they are entitled to an acquittal.

10. In the result this revision petition is allowed and the conviction entered against the appellants,who are accused 1 to 4, and the sentences awardedto them by the lower court are set aside. They areacquitted of the offences charged against them inthis case. Their bail bonds are cancelled and theyare set at liberty.


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