Skip to content


Moideen Kutty Haji Vs. Moosa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1962CriLJ132
AppellantMoideen Kutty Haji
RespondentMoosa
Cases ReferredState of Madhya Pradesh v. K. P. Ghiara A.I.R.
Excerpt:
.....case that it could be held that the commitment was bad. it may be that during the course of the trial the accused may be able to show that the evidence is unreliable or that in view of the defence evade the prosecution evidence cannot be accepted. 2 to 5 it would not be better and proper in the interests of justice to summon the witnesses and have them examined in court in his presence. the nagpur high court held that the conversion took place in bombay only and therefore the bombay court alone had jurisdiction to try the offence- the supreme court set .aside the order of the high court, his lordship govinda menon, j, delivering the judgment observed :the venue of enquiry or trial of a case like the present is primarily to be determined by the averments contained in the complaint or..........evidence, then the documents cancel be said to be forged.it may be that during the course of the trial the accused may be able to show that the evidence is unreliable or that in view of the defence evade the prosecution evidence cannot be accepted. the learned counsel for the petitioners has raised various other points, but they are points which have a bearing on the merit of the case. in view of the fact that i am not interfering with the order of commitment, i think it inexpedient to express any opinion on those matters.13. an important point raised by the learned counsel for the petitioners is that the learned district magistrate has gone wrong in permitting the most important witnesses in the case to be examined on commission and that has vitiated the entire proceedings and the.....
Judgment:
ORDER

P. Govinda Menon, J.

1. This is a petition Under Section 215, Cr.PC to quash the committal of the two accused by' the District Magistrate to the court of Sessions, Tellicherry to stand their trial for offences Under Sections 466 and 471, I.P.C.

2. The facts of the case are briefly as follows:

One Soopi Haji of Kolavallur amsom was a trader in Burma. He had acquired large properties in Burma as well as in India. He died in 1955 leaving his wife and children in India and a wife and children in Burma. The 1st accused is his son by his wife Biyathuma in India and he was representing the wife and children in India. The other wife Ayissa Bi in Burma had three daughters and one son.

3. Pw. 1, the complainant is an Indian having his business in Burma and was known to deceased Soopi Haji. The Burmese wife and children wanted Pw. 1 to negotiate with the 1st accused for a settlement of their share of the properties. They executed a power of attorney Ext PI in favour of Pw. 1 giving him full powers to effect a settlement Pw. 1 started negotiations with the 1st accused. In the meanwhile the 1st accused went to Burma somewhere in March 1956, and offered 5,000/- Kyats in Burmese currency to the wife and children to give a surrender of their rights in the properties. They demanded 30,000/- Kyats. The negotiations did not materialise and it was agreed that there should be a Panchayat of five persons to settle the matter on 22-4-1956. The 1st accused however suddenly left Burma on 18-4-1956.

4. It is the prosecution case that while in Burma the 1st accused forged a special power of attorney Ext. P2 dated 3-4-1956 purporting to have been executed by two of the heirs, Pathu and Mayiohi in favour of the 2nd accused authorising him to present for registration the release deed Ext. P3 dated 20-3-1956 whereby they surrendered their rights in the entire properties to the 1st accused for a sum of Rs. 1000/-. The 2nd accused is the brother of the 1st accused's mother. On the strength of the power Of attorney the 2nd accused produced the release deed Ext. P3 before the Registrar of Tellicherry and got the document registered on 11-4-19,56.

5. Pw. 1 who had come to India returned after the period of his visa to Burma in June 1666. He questioned the Burmese wife and children about Exts. P2 and P3 and learned from them that the documents were not really executed by them. The person who it is said was the attesting witness denied the attestation. The Burmese wife and children later assigned all their rights in the property to the complainant and he returned to India and filed a private complaint before the District Magistrate, Tellicherry on 8-1-1957 against the two accused for haying forged the document and for using the same knowing it to be a forged document.

6. The complainant was examined as Pw. 1. lie had no personal knowledge of the facts of the case, but he was not cross-examined. Besides Pw. 1, four other witnesses were examined on commission, Pw. 2, Pathu, Pw. 3, Mariam Bi, IV. 4, their mother Ayissa Bi and Pw. 5, Mammu Haji. Pathu and Mariam Bi denied the execution of Exts. P2 and P3. Mammu Haji deposed that he had not attested Ext. P3. Pw. 4 the mother also deposed that she had not agreed to any dealings in respect of the property.

7. The case of the 1st accused was that Ext. P2 the power of attorney was really executed by Pathu and Mariam Bi. He examined Dw. 4, the Sub-Divisional Magistrate of Rangoon before whom Ext. P2 was executed. On a consideration of the entire evidence the learned District Magistrate found that there were sufficient grounds for committing the accused for trial and has committed both the accused to stand their trial in the Court Of Sessions, Tellicherry. This petition is filed to quash the commitment.

8. Section 215 of the Criminal Procedure Code lays down that a commitment once matte Under Section 213 by a competent Magistrate, can be quashed by the High Court only and only on a point of law. The question therefore for decision in this petition is whether there is any error of law in the committal proceedings to justify the quashing of the- commitment.

9. Section 210 of the Criminal Procedure Code lays down that upon taking the evidence referred to in Section 208 and such examination of the accused, if the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial he shall frame a charge Under Section 213, Crl. P.C. and make an order of commitment. What are 'sufficient grounds' for committing is not defined anywhere. The question of the extent of the powers of the committing court Under Sections 200 and 210, Cr. P.C. has arisen in a number is decided cases, but it is not necessary to refer to all those cases now in view of the two recent Supieroe Court cases. In Ramgopal Ganpatrai v. State of Bombay : 1958CriLJ244 , after dealing with the case law on the subject it is stated :

In our Opinion, the law in India and the Law in England, on the question now under consideration, appears to be the same. In Halsbury's 'Laws of England' Vol. 10, 3rd Ed. (Lord gimonds) in Article 866 at p. 365, die law has been stated thus:When all the evidence has been heard, the examining justices then present who have heard all the evidence must decide whether the accused is or is not to be committed for trial. Before determining this matter they must take into consideration the evidence and any statement of the accused. If the justices are of opinion that there is sufficient evidence to put the accused upon trial by jury for any indictable offence they must commit him for trial in custody or on bail.

In each case, therefore, the Magistrate holding the preliminary inquiry, has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied, he is not to commit.' Applying the aforesaid test their Lordships came to the conclusion that the particular case they were dealing was preermnently a case which, should have been committed.

10. In a later case in Khushi Ram v. Hashim A.I.R. 1959 SC 542, their Lordships of the Supreme Court had to consider the propriety of quashing a commitment under the provisions of Section 561-A of the Cr. P. C It was argued in that case that the commitment once made Under Section 213 can be quashed only by the High Court and that also only On a point of law. His Lcrd hp Jajnes, at of the Allahabad High Court took the view that the absence of evidence was a question of law and since in his opinion, there was no evidence to justify 'the order of commitment the order has to be quashed. The learned Judge in that case discussed the evidence and reached the conclusion that there was no evidence to support the order of commitment. 'When the matter came up before the Supreme Court, their Lordships held that the learned Judge has misdirected himself in dealing with the application. before him, and observed :

The distinction must always foe drawn between absence of 'legal evidence' and absence of 'reliable evidence'. If it emoted be said with justification that there was no legal evidence at all in support of the prosecution ease, it may lead to the inference that the commitment was bad in that it Was not based on any legal evidence at all. But on the other hand where circumstances are relied upon to show that the evidence may perhaps not be believed, they do not lead to the inference that there is no legal evidence on the record.

And finally it was stated ;

Under, the Code of Criminal Procedure it is only on a question of law that the order of commitment can be reversed and reacting the judgment of the learned Judge as a whole we are unable to see even a trace of a point of law on which his jurisdiction Under Section 215 could have been validly invoked.

The order quashing the Commitment was therefore set aside.

11. From these decisions it will be clear that the only question that has to be considered in this petition is whether there is any legal evidence on which the commitment could have been made. It h only in cases when there is no legal evidence at all in support of the prosecution case that it could be held that the commitment was bad. The question whether such evidence would appeal to any court and would be accepted by the trial court and would. ultimately result in a conviction are matters that need not be considered at the stage of commitment.

12. Let us see whether there is any such legal evidence adduced in the case which would justify the commitment. Five witnesses have been examined in this case, Pw. 1 is the complainant. He has not been cross-examined. Pws. 2 and 3 definitely had stated that they' have not executed Exts. P2 and P3. Pw. 5 has stated that he had not attested Ext. P3. Pw 4 the mother also has stated that her daughters had not executed such documents. If their evidence is accepted, and it is not for me at this stage to say whether any court would accept their evidence, then the documents cancel be said to be forged.

It may be that during the course of the trial the accused may be able to show that the evidence is unreliable or that in view of the defence evade the prosecution evidence cannot be accepted. The learned Counsel for the petitioners has raised various other points, but they are points which have a bearing on the merit of the case. In view of the fact that I am not interfering with the order of commitment, I think it inexpedient to express any opinion on those matters.

13. An important point raised by the learned Counsel for the petitioners is that the learned District Magistrate has gone wrong in permitting the most important witnesses in the case to be examined on commission and that has vitiated the entire proceedings and the evidence of such Witnesses cannot be said to be legal evidence and has to be eschewed and if that is done there is no other evidence.

14. The learned Counsel has brought to my notice the decision in Dharmanan Pant v. State of Uttar Pradesh : 1957CriLJ894 . The question that arose for decision in the case was whether in a prosecution where two of the most impottanjt witnesses who were to prove the offence were1 examined on commission it could be said that the trial was in strict consonance with the established- rules of practice and whether it vitiated the trial- His Lordship Justice Govirida Menon delivering the judgment of the Bench discussed the provisions contained in Sections 503 and 506, Cr. P.C. and observed :

It is not necessary to refer to case law on the point because the matter in one to be decided on the facts in each case, As a general rule it may be said that lie important witnesses on whose (testimony the case against the accused person has to be established, must be examined in court and usually the issuing of a commission should be restricted to formal witnesses or such witnesses who could not be produced without an amount of delay or inconvenience unreasonable in the circumstances of the case. The idea of examining witnesses on commission is primarily intended for getting the evidence of witnesses other than parties principally interested such as. a complainant or any person whose testimony is absolutely essential to prove the prosecution case. In short, witnesses in a criminal case should not be examined on commission except in extreme cases of delay, expense Or inconvenience and in particular the procedure by way of interrogatories should be resorted in unavoidable situations. The discretion to be used by the Magistrate is a judicial one. and should not be lightly or arbitrarily exercise.

After discussing the circumstances under which an order for the issue of commission could be passed His Lordship observed :

If the essential pre-requisite for the validity of the issuing of a commission in Section 503 hag not been complied with the evidence so taken would be improper and could not be used against the accused. This is a defect which goes if the root of the matter and is vital in content. Thus the entire proceedings are vitiated and the evidence of the witnesses taken on commission will have to ho completely eschewed from the record.

15. There is no such defect here. The only question is whether the learned District Magistrate has exercised his discretion properly in allowing the evidence of witnesses 2 to 5 to be taken on commission. It is no doubt true that ordinarily in criminal proceedings the evidence against the accused should be recorded in his presence and in Open court, so that the accused may cross-examine the witnesses and the Presiding Officer may have the advantage and opportunity of hearing the witnesses in person, noting his demeanour and finding out for himself on such observation whether what the witnesses depose is true or not-Therefore as a general rule, important witnesses on whose testimony the case against the accused has to be established must be examined in court. There is therefore considerable force in the sub-mission of the learned Counsel that the witnesses ought to have been summoned to appear in, court and that the Magistrate has not exercised his judicial discretion properly.

16. But as observed in G. V. Raman v. Emperor A.I.R.. 1929 Cal 593, where a Magistrate, in making an order of commitment has contravened any provision of law, the High Court is entitled and ought to set aside the commitment on that ground; but where he has not violated any provision of law but has only erred in the exercise of the discretion vested in him, (he High Court will seldom interfere in such cases. No prejudice also has been caused to the accused in this case because when the case comes up for trial, the petitioners can, if though fit, present a petition to the court and the learned Sessions Judge can after hearing the parties independently decide for himself whether under the circumstances of this case, when the whole case would depend On the evidence of Pws. 2 to 5 it would not be better and proper in the interests of justice to summon the witnesses and have them examined in court in his presence. But merely because they were examined On, commission, and not in court, it cannot be said that the evidence so recorded by the committing Magistrate is not legal evidence. I am, therefore, not prepared to agree, with the learned cuirasses that there is no legal evidence in the case.

17. Another question that is raised is that the Magistrate had no jurisdiction to entertain the complaint, that the offence of forgery, if any is committed only in Burma, that the 2nd accused had nothing to do with the offence Of forgery and that their joint trial is not proper and legal, The learned Counsel for the respondent contends that in the complaint it has not been specified that the forgery was committed in Burma, that it is uncertain whether the offence was committed in Burma or in India and that being the case Section 182(1) Cr.PC, applies and that the offence could be inquired into in India also. He further submitted that the question as to what the offence, committed by each of the accused has to be decided on the evidence by the trial Judge and the committal order cannot be quashed at this stage.

18. He has referred to the decision in State of Madhya Pradesh v. K. P. Ghiara A.I.R. 1957 SC 196, In that case the question that was raised was whittler an accused employed at Nagpur, but entrusted, with money at Bombay and who did not account for the monies in the company's books of account at Nagpur and misappropriated the amount could be proceeded against in the Nagpur. Court. The Nagpur High Court held that the conversion took place in Bombay only and therefore the Bombay court alone had jurisdiction to try the offence- The Supreme Court set .aside the order of the High Court, His Lordship Govinda Menon, J, delivering the judgment observed :

The venue of enquiry or trial of a case like the present is primarily to be determined by the averments contained in the complaint or charge-sheet and unless the facts there are positively disproved, ordinarily the court, where the charges-sheet or complaint is filed, has to proceed with it, except where action has to he taken Under Section 202 of the Criminal Procedure Code.

It was, therefore, held that in the circumstances of the ease it was uncertain whether the offence of embezzlement was committed at Bombay or Nagpur and Section 182, Cr.PC applied and the court' at Nagpur had jurisdiction to inquire into the offence.

19. Now even assuming in this case that the forgery was committed in Burma, still the user of the forged documents if any was in India and if on the evidence it could be proved that the 2nd accused fraudulently or dishonestly used it, knowing it to be forged and the 1st accused abetted the offence, then both the accused could be tried here for the offence Under Section 471 of the Indian Penal Code. All these have to be decided by the trial Judge and I do not propose to express any opinion on the points raised. The question about the competence of the charge and its effectiveness are merely hypothetical questions at this stage and are insufficient for having the committal order quashed Under Section 215, Cr.PC

20. No Other point is raised. The revision petition is dismissed.

21. The learned Sessions Judge will now expedite the hearing of the case.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //