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Sk. Osman Gani Vs. Baramdeo Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Appeal No. 25 of 1956 with Revn. No. 1618 of 1955
Judge
Reported inAIR1959Cal145,1959CriLJ311,63CWN181
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 417(3), 439, 522 and 522(1); ;Code of Criminal Procedure (CrPC) (Amendment) Act, 1955 - Section 116
AppellantSk. Osman Gani
RespondentBaramdeo Singh and ors.
Appellant AdvocateHarisadhan Basu Choudhury and ;Abinash Chandra Bhattacharya, Advs.;Ajoy Kumar Basu, Adv.
Respondent AdvocateNalin Chandra Banerjee, Adv.
Cases Referred(Nanda Lal Das v. Benoy Kumar Das Cri. Revn. No.
Excerpt:
- s.n. guha ray, j. 1. to the maintainability of this appeal on behalf of the complainant, sk. osman gani, from an order of acquittal of the respondents mr. banerjee on behalf of the respondents has taken a preliminary objection on the two-fold ground, first, that it is not a case instituted upon a complaint so as to attract the provisions of section 417 (3) of the code criminal procedure and secondly that when the order of acquittal which is sought to be challenged in this appeal was passed the complainant had no right of appeal and the fact that by subsequent legislation a right of appeal was conferred on the complainant from an order of acquittal would not accrue to the benefit of the complainant so as to entitle him to file an appeal after this legislation came into force.2. the facts.....
Judgment:

S.N. Guha Ray, J.

1. To the maintainability of this appeal on behalf of the complainant, Sk. Osman Gani, from an order of acquittal of the respondents Mr. Banerjee on behalf of the respondents has taken a preliminary objection on the two-fold ground, first, that it is not a case instituted upon a complaint so as to attract the provisions of Section 417 (3) of the Code Criminal Procedure and secondly that when the order of acquittal which is sought to be challenged in this appeal was passed the complainant had no right of appeal and the fact that by subsequent legislation a right of appeal was conferred on the complainant from an order of acquittal would not accrue to the benefit of the complainant so as to entitle him to file an appeal after this legislation came into force.

2. The facts which are necessary to be stated for disposing of this two-fold objection of Mr. Banerjee are briefly as follows : On 2-2-1953 the complainant filed a petition of complaint against the respondents and others before the Suburban Police Magistrate, Alipore. The Magistrate did not examine the complainant on oath on receipt of the complaint but on that date he ordered the petition to be put up on the 3rd as it was too late. On the 3rd of February, he passed the following order :

'Perused petition. To O. C. Watgunge P. S. for taking cognizance in the matter if materials be forthcoming.'

Then on 19th February, he made the following order;

'Seen police report according to which there are materials for taking up cognizance. The police ,to take up cognizance as per order dated 3-2-53..

The police submitted a charge-sheet against the respondents who were alleged to be on police bail. They were convicted on 11-4-1955. On appeal they were, however, acquitted on 25-11-1955 by an additional Sessions Judge. This appeal is directed against this order of acquittal.

3. Mr. Banerjee's contention on the first point is that although the complainant first moved the court with a petition of complaint the complainant was not examined on oath and the Magistrate did not take cognizance of the offence or offences alleged in that complaint but what he did was to refer the matter to the police for investigation after taking cognizance and the Magistrate later took cognizance on the police report so that it ceased to be a case instituted on a petition of complaint. It is necessary to examine this contention somewhat closely. The expression 'any case instituted upon complaint' used in Section 417 (3) of the Code of Criminal Procedure means either of two things. It may mean a case in which the first step taken to move the Magistrate is a petition of complaint whether or not cognizance is taken upon it or it may mean a case in which not merely a petition of complaint is filed but the Magistrate takes cognizance upon it. The question is which of these two meanings can be ascribed to the expression as used an Section 417 (3) of the Code. For a correct decision of the point it is necessary to look into the use of similar expressions in the Code and to the whole scheme of the Code of Criminal Procedure as far as the cognizance of offence or offences is concerned. Before doing so, I may at once point out that the self-same expression 'any case instituted upon complaint' is used in Section 250 (1) of the Code of Criminal Procedure and Section 249 of the Code uses the expression 'any case instituted otherwise than upon complaint' so that when Section 417 (3) was introduced by the latest amendment of the Code of Criminal Procedure, it was not really using a new expression at all but it was using an expression which was already in the Code in Section 250 (1). In part VI of the Code which deals with proceedings in prosecutions there are altogether 16 chapters from Chapter XV to Chapter XXX. Of these chapters we are concerned primarily with Chapters XV. XVI and XVII to start with. Chapter XV again is divided into two parts, A and B. The first part commencing from Section 177 and ending with Section 189 deals with the place of inquiry or trial and with that we are not concerned. Part B beginning from Section 190 and ending with Section 199-B deals with conditions requisite for initiation of proceedings. Then Section 190 lays down how cognizance of offences can be taken by certain Magistrates and in this the basis of cognizance has been stated to be three-fold, namely firstly upon receiving a complaint of facts which constitute such offence; secondly upon a report in writing of such facts made by any police officer and thirdly upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. It is thus obvious that if the third item be left out because that is upon information received by a Magistrate from any person other than a Police officer or upon the Magistrate's own knowledge or suspicion there are two distinct modes in which a Magistrate is entitled to take cognizance of offences. The first of these modes is on receipt of a complaint and the second is on receipt of a police report. Then Section 200 in Chapter XVI lays down that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. This as subject to certain provisos, one of which is that when the complaint is made in writing nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring 'the case' under Section 192. The expression 'the case' should be marked here. In Chapter XV although Section 190 (1) speaks of taking cognizance of an offence Section 192(1) and (2) speaks of taking cognizance of cases. Then Chapter XVII deals with inquiry into cases triable by the court of Sessions or High Court and here under the latest amendment two distinct types of procedure are laid down for two classes of cases. Section 207 lays down that in any proceeding instituted on a police report the Magistrate holding the inquiry has to follow the procedure specified in Section 207-A and in any other proceeding he has to follow the procedure specified in the other provisions of this Chapter and then Section 207-A speaks of any proceeding instituted on police report. Section 208 deals with any proceeding instituted otherwise than on a police report. From an examination of these sections it seems to be fairly obvious that the Code all along even before the amendment distinguished between two classes of proceedings or cases, one instituted on complaint and the other instituted on Police report and under the amendment the distinction has become still more pronounced. The question now is whether in a case such as the present when the complainant came to court with a petition of complaint but the Magistrate did not take cognizance on that complaint but referred it to the police and then on receipt of a report from the police he took cognizance, it can be held that the case was one instituted on a complaint within the meaning of the expression in Section 417 (3) of the Code of Criminal Procedure. I am inclined to take the view that it cannot, for the simple reason that the Code all along has been using this expression to mean a class of cases in which proceedings are initiated on the complaint itself and proceedings can be initiated only after cognizance has been taken as is quite clear from an examination of Section 190 itself. The expressions 'proceeding' and 'cases' in the different sections already noticed appear to me to have been used in the same sense. A case is a cause before the court and there is no cause before the court until the court initiates proceedings on the basis of it. As soon as the proceedings are initiated there is a cause before the court so that the expression 'any case instituted upon complaint' must, in my opinion, mean only that class of cases where not merely the complainant comes to court with a petition of complaint but the Magistrate takes cognizance of the offence or of fences alleged on the basis of that complaint. In this connection I may refer to a judgment of Debabrata Mookerjee, J., in Parul Bala v. The State, : AIR1957Cal379 , where in considering the meaning of the word 'case' used in Section 553 (1) of the Code his Lordship says that it is only when a report, that is a report under Section 173 of the Code of Criminal Procedure, is made out and the Magistrate takes cognizance of the offence, that a case is brought into existence and it is only then that the case can be heard by the Magistrate within the meaning of Section 553 of the Code. Although he was trying to explain the expression 'the case' used in Section 553 (1) of the Code of Criminal Procedure a similar meaning must be attributed to the expression 'case instituted upon complaint' used in Section 417 (3) of the Code. We accordingly uphold this objection of Mr. Banerjee to the maintainability of the appeal.

4. The other objection is that as the order of acquittal was passed on 25-11-1955, when there was no right of appeal in the complainant because Section 417 (3) although already enacted did not come into force till 1-1-1956, there is no right of appeal at all in this case. On behalf of the appellant it is contended that an appeal is merely a continuation of the previous proceedings in the trial Court and as the right of appeal was conferred within the period of limitation the appellant had a right of appeal. It was also argued that he actually filed an application for revision on 24-1-1956 but ultimately withdrew it. On behalf of the appellant our attention has been drawn to Section 116 of the Code of Criminal Procedure (Amendment) Act, 1955 which runs as follows :

'116. Savings--Notwithstanding that all or any of the provisions of this Act have come into force in any State -

(a) the provisions of Section 14 or Section 30 or Section 145 or Section 146 of the principal Act as amended by this Act shall not apply to, or affect any trial or other proceeding which, on the date of such commencement, is pending before any Magistrate, and every such trial or other proceeding shall be continued and disposed of as if this Act had not been passed;

(b) the provisions of Section 406 or Section 408 or Section 409 of the principal Act as amended by this Act shall not apply to, or affect, any appeal which, on the date of such commencement is pending before the District Magistrate or any Magistrate of the first class empowered by the State Government to hear such appeals, and every such appeal shall, notwithstanding the repeal o the first proviso to Section 406; or of Section 407 of the principal Act, be heard and disposed of as if this Act had not been passed;

(c) the provisions of Clause (w) of Section 4 or Section 207A or Section 25IA or Section 260 of the principal Act as amended by this Act shall not apply to, or affect, any inquiry or trial before a Magistrate in which the Magistrate has begun to record evidence prior to the date of such commencement and which is pending on that date, and every such inquiry or trial shall be continued and disposed of as if this Act had not been passed;

(d) the provisions of Chapter XXIII of the principal Act as amended by this Act shall not apply to, or affect, any trial before a Court of Session either by jury or with the aid of assessors in which the Court of Session has begun to record evidence prior to the date of such commencement and which is pending on that date, and every such trial shall be continued and disposed of as if this Act had not been passed;

but, save as aforesaid, the provisions of this Act and the amendments made thereby shall apply to all proceedings instituted after the commencement of this Act and also to all proceedings pending in any Criminal Court on the date of such commencement.'

Clauses (a), (b), (c) and (d) of Section 116 of the Amendment Act first lay down the cases where the sections of the principal Act as amended will not apply and then it lays down that save as aforesaid the provisions of this Act and the amendments made thereby shall apply to all proceedings instituted after the commencement of the Act and also to all proceedings pending in any criminal court on the date of such amendment. He accordingly argues that the revisional application which he filed and which he ultimately withdrew would attract to it the provisions of the Code applying to appeals. He further argues that although the revisional application was withdrawn it must be deemed to be pending in the sense that a cause is said to be pending before the court when any proceedings can be taken in it as enunciated in Mohan Lal Khettry v. Chuni Lal Khettry, 55 Cal WN 421 (B), on the strength of an English case in re : Clagett's Estate; Fordham v. Clagett, 1882-20 Ch. D. 637 (C), which was quoted with approval in the Full Bench case of Santosh Kumar Das v. Nripendra Kumar Roy, 53 Cal WN 533 : (AIR 1949 Cal 430) (D), the dictum laid down in the English case being that a cause is said to be pending in a court of justice when any proceedings can be taken in it. It is argued on the basis of this dictum that because a revisional application could be filed and was actually filed although it was ultimately withdrawn there was before the court a pending cause because a proceeding could be taken either by way of an appeal or by way of revision.

5. Mr. Banerjee, on the other hand, argues that the right of appeal attaches to a cause at the commencement of the proceeding out of which the appeal arises and for this proposition he refers to a number of decisions. The first of these decisions is an English case. Colonial Sugar Refining Co., Ltd, v. Irving, 1905 AC 369 (EX This is a case where under the Australian Commonwealth Act, 1903 called the Excise Tariff Act No. II of 1902, the Collector of Customs, Queensland, required the appellants the Colonial Sugar Refining Company, Ltd. to pay 20, 100/- as excise duty in respect of 6700 tons of sugar. The appellants disputed the claim. So they deposited the money with the Collector in accordance with the provisions of the Excise Act, 1901, and then brought this action against the Collector to recover the sum deposited, the writ in the action was issued on October 25, 1902. Under the Rules of the Supreme Court a special case was stated by the parties fur the opinion of the Full Court. On September 4, 1903 the Court decided that the Government was entitled to retain the duty and gave judgment for the Collector with costs. In the meantime the Judiciary Act, 1903, had been passed and it received the Royal Assent on August 25, 1903. The appellants dissatisfied with the judgment of the Supreme Court applied to the Court for leave to appeal to His Majesty in Council. That leave was granted. On behalf of the respondent there was a petition praying that the appeal should be dismissed on the ground that the right of appeal to His Majesty in Council given by Order of the Council on June 30, 1860 under which the leave was granted had been taken away by the Judiciary Act of 1903 and that the only appeal from a decision of the Supreme Court of Queensland lay to the High Court of Australia. On behalf of the appellants it was contended that the provisions of the Judiciary Act, 1903 on which the respondents relied, assuming them to be within the powers of the Commonwealth Legislature are not retrospective so as to defeat a right in existence at the time when the Act received Royal Assent. Their Lordships of the Privy Council disposed of the contention as follows :

'As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.'

The petition was accordingly dismissed.

6. In the case of Delhi Cloth and General Mills Co., Ltd. v. I. T. Commr., Delhi , their Lordships applied the principle enunciated in the case of Colonial Sugar Refining Co., Ltd. v. Irving (E) and said as follows :

'If the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided.'

In Garikapati Veeraya v. N. Subbiah Choudhry, (S) : [1957]1SCR488 , the Supreme Court on an examination of a number of authorities deduced the following principles :

(1) 'The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(2) The right of appeal is not a mere matter of procedure but is a substantive right.

(3) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

(4) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(5) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise'.

If these principles are applied to the case in hand it will be obvious that the order of acquittal passed on the 25th November, 1955, was final at the date when it was passed. There was no right of appeal to the complainant not merely when the complaint was filed but also when the order of acquittal was passed. This right accrued to the complainant only with effect from the 1st of January, 1956. At the date, therefore, when the order of acquittal was passed under the law then in force that order of acquittal was final subject only to such right as the complainant may have had in moving the court in revision and as the revisional powers of the court are always discretionary with the court (vide Section 440 of the Code of Criminal Procedure) the complainant does not acquire any right merely because the High Court is entitled to revise the order in question. That being so, the appellant had no right of appeal from this order of acquittal. As far as Section 116 of the Code of Criminal Procedure (Amendment) Act, 1955 on which reliance was placed on behalf of the appellant goes, all that we need point out is that that section is intended to apply only in pending cases and pending cases do not mean, even on the dictum in re : Clagett's Estate; Fordham v. Clagett (C), something which is not before the court at all but something which is really before the court. In order that a cause may be pending before a court the cause must be before the Court. A cause which has been disposed of finally is not one in which a proceeding can be taken before the court so that such a cause cannot be said to be pending. But a cause in which any further proceedings can be taken is a cause which is pending. But when there is no cause before the court at all nothing is pending. As there was no application for revision actually pending before the criminal court there is no question of Section 116 of the Amendment Act applying to such a case. Even if there were a cause actually pending in a criminal court and if it were an application for revision only those of the provisions of the principal Act as amended would have applied to that proceeding in revision which were applicable to revisional applications. The section does not certainly mean that provisions applicable to the trial of case would be applied to proceedings in revision. It only means that whatever provisions of the Code as amended were applicable to the proceedings pending in a criminal court would be applicable and not other provisions. Consequently, it cannot be held that even if an application in revision were pending in a criminal court to that would be attracted the provision giving a right of appeal to a complainant when no such right actually existed on the date when the order appealed from was passed. A Division Bench of the Allahabad High Court in the case of Dayal Singh v. Prasadi, (S) : AIR1956All478 , took the view that the right given by Section 417 (3) of the Code of Criminal Procedure as amended could be availed of by a complainant whose complaint though filed prior to the commencement of Act No. 26 of 1955, ended in acquittal subsequent to the enforcement of that Act, but is not available to a complainant whose complaint had ended in acquittal prior to the enforcement of that Act.

7. In this view the second objection of Mr. Banerjee to the maintainability of the appeal must also be upheld.

8. The appeal must, therefore, be dismissed on the preliminary ground that it is not maintainable.

B.K. Bhattacharya, J.

9. I agree.

Re: Application under Section 439, Cr. P. C., filed in Court on the 12th February 1958.

S.N. Guha Ray, J.

10. This application under Section 439, Cr. P.C., by Osman Gani, the complainant is for revision of an order of acquittal of the opposite parties in a case under Section 447 of the Indian Penal Code. The opposite parties were convicted by the learned Magistrate but the learned Judge on appeal acquitted them.

11. The case for the prosecution briefly is that one Lutfar Rahaman and his co-sharer Afiladdi were tenants of the complainant's mother Nekjan Bewa in respect of premises No. 18-H/5, Circular Garden Reach road where they had a cattle market. Nekjan Bewa instituted a suit for ejectment against Lutfar Rahaman and Afiladdi and obtained an ex parte decree therein. In execution of the said decree she got khas possession of the premises after evicting Lutfar Rahaman and Afiladdi on the 31st January 1953. The mode of taking khas possession of the premises was that a bamboo fencing was erected thereon and a hut on the premises was padlocked. But on the 1st of February 1953 at about 3 a.m. the opposite parties criminally trespassed into the said premises by demolishing the fencing and forcing open the door of the aforesaid room and intimidating the complainant and the guards kept by him thereon. The defence was that Rampeary was in actual occupation of the premises in dispute as tenant under Nekjan Bewa on the strength of a purchase of 4 as. share of the khatal business belonging to Lutfar Rahaman and Afiladdi by a registered kobala from Lutfar Rahaman on the 19th June 1950 on payment of a sum of Rs. 1500/-. The learned Judge found in agreement with the trial Court that Osman Gani obtained delivery of possession of the premises as against Lutfar Rahaman and Afiladdi. The learned Magistrate however found, in addition to that, that the opposite parties committed criminal trespass into the premises after delivery of possession had been effected by a Court peon on the 31st of January 1953 and accordingly convicted the opposite parties. The learned Appellate Court held that although Rampeary might not have acquired strictly speaking any title to the land on which the khatal business was carried on she might in good faith have believed that she held a share in the same premises on the strength of her deed of purchase and that her remaining on the land after the eviction of Lutfar Rahaman and Afiladdi on the 31st January 1953 could not be said to have been with the intention of causing intimidation, annoyance or insult to Osman Gani. He accordingly found that the elements of an offence under Section 447 of the Indian Penal Code did not exist and acquitted the opposite parties.

12. On behalf of the petitioner it is argued thatthe learned Judge misread the evidence. We havebeen taken through the relevant portions of theevidence and we do not find that the learned Judgemisread the evidence. On the other hand, it doesappear that there are indications in the evidencethat Ram Peary might already have been on theland and as a matter of fact, as she had purchasedthe khatal business although that might not strictly confer on her any right to the land, there wasno question of her remaining on the land with theintention of causing intimidation, annoyance or insult to the owner of the premises, that is, OsmanGani. That being so, the finding of the learnedJudge can hardly be assailed legitimately in revision.

13. It may be said here that this application although filed long after 60 days had elapsed from the order of acquittal was admitted by us because the petitioner had already filed an appeal which we held to be not maintainable.

14. This application must accordingly be dismissed.

B.K. Bhattacharya, J.

15. I agree.

Criminal Revision No. 1618 of 1955.

S.N. Guha Ray, J.

16. This application in revision by Rampeary is directed against an order under Section 522 of the Code of Criminal Procedure of a Magistrate trying a case against her and others under Section 447 of the Indian Penal Code. The learned Magistrate convicted the accused in that case and passed the order on the 12th January 1955 directing restoration of the land to the complainant Osman Gani, The order of conviction, however, was set aside and Ram Peary was acquitted on the 25th of November 1955. Then this application was filed by Ram Peary on the 23rd of December 1955 for setting aside the order passed by the learned Magistrate. It appears that Ram Peary moved the learned Judge on the 26th of November 1955, that is, one day after the order of acquittal was passed for a direction of the Officer-in-charge of the Watgunge Police Station to deliver possession of the premises to her under Section 522 of the Code of Criminal Procedure. The learned Judge rejected that application by an order dated the 1st of December 1955 saying that he could not pass any such order as he was functus officio. In fact what Ram Peary asked for was not really an order under Section 522 of the Code of Criminal Procedure. Under that section an order for restoration of possession can be made only on conviction when there is a particular finding. But here is a case where on conviction an order of restoration of possession to the complainant was made by the Magistrate. What she was in effect asking for was in the first place an order setting aside the order of the learned Magistrate under Section 522 of the Code of Criminal Procedure and secondly an order directing restoration of possession in her favour. Evidently, neither the learned Magistrate nor the learned Sessions Judge was in a position to pass any such order there being no provision in the Code for any of them setting aside such order. Such an order can be set aside only on revision by the High Court when it appears that the order is not sustainable in law. Now the basis of an order under Section 522(1) of the Criminal P. C., is a conviction together with a certain finding that the complainant was dispossessed by force or show of force or criminal intimidation. As soon as the conviction is set aside the whole basis of the order disappears. Consequently it is open to the High Court after the conviction has been set aside to set aside the order under Section 522(1) of the Code of Criminal Procedure and to direct restoration of possession to the party who has been dispossessed by the order under Section 522 (1) of the Code of Criminal Procedure. This is the view taken by a Single Judge of the Allahabad High Court in Malkhan Singh v. Emperor : AIR1945All226 and N.K. Sen J. in (Nanda Lal Das v. Benoy Kumar Das Cri. Revn. No. 1080 of 1957 Cal (J), unreported) of this Court.

17. This petition in revision therefore succeeds. It is ordered that the order passed by the learned Magistrate under Section 522(1) of the Code of Criminal Procedure directing restoration of possession of the premises No. 18/H/5 is set aside and the learned Magistrate is directed to put back Ram Peary who had been dispossessed by that order, into possession.

18. This Rule is accordingly made absolute.

B.K. Bhattacharya, J.

19. I agree.


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