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Emperor Vs. Hari Das Mitra and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1923Cal108,73Ind.Cas.770
RespondentHari Das Mitra and anr.
criminal procedure code (act of 1898), section 307 - trial on several charges--acquittal by jury--magistrate agreeing in respect of graver charges--reference on minor charges, propriety of. - .....judge thinks, that hari das and abdul khalifa should be convicted under section 147, indian penal code, and hari das under section 333, indian penal code.6. it is deplorable to think of the amount of public time that has been spent in the investigation of these charges. witnesses were examined on ten days in the committing court, and in the sessions court, the hearing went on continuously for tea whole days.7. so far as the acquittal of surendra, purna, and keshab on all charges, and of hari das and abdul khalifa, on the charge under section 3s0, indian pena code and of hari das on the charges under section 365, indian penal code, i agree in the view taken by the learned judge.8. in regards to abdul khalifa, it is admitted that there is less evidence against him, than against hari das,.....

Walmsley, J.

1. This case has been referred under Section 307, Criminal Procedure Code, by the Sessions Judge of Khulna.

2. The story told by the prosecution is as follows:--Two young. Brahmin women Jibantara, the wife of Khetra Nath Bhattacharjee, and Probhabiiti, a widow, eloped with their lovers, hired a boat and after a week's travelling came to Bajra Bazar. The people of Bajna Bazar guessed what had happened, and thought it their duty to interfere, and they made arrangements for keeping the women, their lovers, and the women's ornaments until some relative could come and assume charge. The arrangement was, that the women and their lovers were taken to tie house of Sureudra Nath Mondal, the Panchayet the ornaments were deposited with a shop-keeper named Keshab Chandra Saha and a man named Bijay started to convey information to Jibantara's husband. All these facts are admitted, and in regard to the motive of the Bazar people, the learned Judge has rejected the Police theory that they ware seeking unlawul advantages for themselves.

3. During the night one of the lovers complained that some money had been stolen from him: the evidence is very unsatisfactory, but the allegation was a good pretext for 3 chaukidar to go to the Thana and in the afternoon Sub-Inspector Bipro Das Chakravarty arrived on the scene in a boat. He went first to Surendra's house and then took the women and their boat to Bajna Bazar. Arrived at the Bazar the Sub-Inspector was urgent in demanding the ornaments. His version ii, that the very existence of the ornaments was dented, but the defence story that Keshab wanted all the witnesses to the deposit to be present at the return, and also wanted a formal receipt, is the more probable. The Sub-Inspector grew excited, and threatened to search Keshab's shop. Then he says Hari Das causeo a disturbance and knocked bin down. The Sub-Inspector took refuge in his boat: there he was attacked by an angry mob the boat was pulled ashore, the women were dragged from it by force, the Sub-Inspector was persuaded to go to Surendra's shop where he was k.-pt iii confinement, and the furnishings of the boat were carried off. In desperation he agreed to say nothing about what had happened: then he was allowed to go and nearly all his belongings were restoreo.

4. On these allegation? the following charges were framed:

(1) against Hui Das, Abdul Khalifa, Surendra, the Panchayet, Keshab I,al Saha, and Purna Chandra Biswas, under Section 147, Indian Penal Code, the common object being stated to be' by show of criminal force to compel Bipro Das Chakravarty, Sub-Inspector of Police, to omit to search Kcshab's shop which he was legally entitled to do;

(2) against the same five persons under section380, Indian Penal Code, for 'theft of a bundle of clothes, a box, some beddings, articles of clothing, utensils, etc., in a boat which was used for the custody of property;'

(3) against the same five persons, except Abdul Khan, under Section 365, Indian Penal Code, 'for ablation of Jibentara and Probhabati with intent to cause them to be secretly and wrongfully confined;'

(4) against Hari Pas and Surendra; Panchayet, only under Section 365,Indian Penal Code, for abducting 'Bipro Das Chakraverty, Police Sub-Inspector, with intent to cause him to be secretly and wrongfully confined;'

(5) against Hari Das alone under Section 333, Indian Penal Code, for causing hurt to a public servant, the intention being stated in neatly the same words as in the first, harge.

5. The Jury was unanimous: in acquitting all the accused of all the charges but the learned Judge thinks, that Hari Das and Abdul Khalifa should be convicted under Section 147, Indian Penal Code, and Hari Das under Section 333, Indian Penal Code.

6. It is deplorable to think of the amount of public time that has been spent in the investigation of these charges. Witnesses were examined on ten days in the Committing Court, and in the Sessions Court, the hearing went on continuously for tea whole days.

7. So far as the acquittal of Surendra, Purna, and Keshab on all charges, and of Hari Das and Abdul Khalifa, on the charge under Section 3S0, Indian Pena Code and of Hari Das on the charges under Section 365, Indian Penal Code, I agree in the view taken by the learned Judge.

8. In regards to Abdul Khalifa, it is admitted that there is less evidence against him, than against Hari Das, and the evidence about the hour of occurrence leads me to doubt whether persons who did not take a prominent part were likely to be recognised. I think, therefore, that the verdict of the Jury should be upheld in his case also. He is accordingly acquitted.

9. That leaves only the case of Hari Das for consideration. It is urged with some force, that the learned Judge, having rejected much of the evidence and having accepted the Jury's finding on the grave charges, should not have made a reference with the object of having some of the accused convicted on minor charges. In this case, however, I do not think the argument applied, for here the prosecution hat failed, not because tae evidence as to that happened is false, bat because the facts alleged do not amount to the offences of abduction and theft. The substance of the prosecution case remains unaffected and that is, that a Sub-Inspector of Police was molested, while in exercise of his duties. On this point the difficulties of the prosecution are increased by the words in which the common object under one section and the intention in the other ere set out. The prosecution has taken upon itself to prove that Bipra Das, the Sub-Inspector, had a light to search Keshab Sana's shop. It id argued that he had no such sight, and that if he had, he was acting contrary to the rule in searching after sunset. This question involves the second position of what the Sub-Inspector woe, doing in the Bazar he was brought to Surendra's house, to enquire into a theft from Kali Das, but by the time he reached the Bazar, he had evidently taken the affairs of the women into his hands. It is quite conceivable that they misrepresented the position to him. But, whatever the explanation is, it is clear that he regarded the recovery of the ornaments as one or his first duties: it is also clear that he asked Keshab to produce them and that Keshab did not do so. The Sub-Inspector's right to search the house then depended on the offence which he was investigating and on Keshab's attitude to his demand.- On the first point, I feel very doubtful as to whether the women had given the Sub-Inspector cause to believe that there had been theft. He said himself, 'They said that the ornaments had been taken without their consent, but I did not understand whether the ornaments had been stolen or taken for safe keeping.' I cannot believe, therefore, that the Sub-Inspector was investigating any charge of theft from the women. I am disposed to think that he was anticipating the complaint that was made by the husband of theft by the women when they eloped. The first essential, therefore, was wanting, and in any opinion, the second is equally wanting. I share the learned Judge's view that there was no denial of the deposit all that happened was that Keshab asked for ceiti.m formalities which involved delay.

10. The result is, that, framed as the charges are, I do not think, that Hari Das can be convicted under either charges and on the account the verdict of the Jury must be upheld in his case also.

11. I have already alluded to the amount of valuable time, that has been wasted over this case. I believe that the Sub-Inspector was hustled and treated with disrespect, thanks to his own want of-tact, but the ingenuity with which the investigating Inspector and Sub-Inspector sought to entangle the accused in charges which the allegations did not support is most regrettable. If there was no one in the Police Department, to curb such misguided zeal, it is surprising that an intelligent Magistrate should have failed to see the facts in true proportion and to realise that the case was one that should be tried in his Court.

12. The reference is rejected, the verdict of the Jury is upheld and the accused are acquitted.

Suhrawardy, J.

13. The learned Sessions Judge in his exceedingly fair and lucid charge has expressed his opinion disbelieving the major portion of the story for the prosecution. I have carefully considered the evidence and I think, he has formed a correct estimate of it. Tb my mind, the whole fracas was due to the ill-judged interference of the Sab-Inspector who showed an unusual zeal in the matter worthy of a better cause. I am not sure that in the interest he took in the case he was actuated by a sense of duty. He went to the spot on receiving information that, it was 'rumoured' that one of the party of new comers had lost Rs. 52. He was not apparently attracted to the Bazar by this rumour, but by the further information, that two run-away young women with valuable jewellery bad arrived there in the course of their wandering. It appears he took no notice of the alleged theft of Rs. 52, but immediately, on his arrival interested himself in the affairs of these women. I do not believe that the women voluntarily complained to him, if they ever did, that their ornaments were taken away from them by force or that they were wrongfully confined. I need not go into the facts further as the learned Judge has correctly gauged the whole situation having discarded almost the whole prosecution story as exaggerated and incredible, the learned Judge seems to be of opinion, that at least ore fact was certain, that there was an unlawful assembly, one member of which, the accused Hari Das, assaulted the Sub Inspector. The incident that led to the assault, as related by the prosecution, is also disbelieved by the Judge. In this state of the record, it cannot be said that the verdict of the Jury was perverse; in my opinion it was justified and reasonable.

14. We are told that the accused we e kept in hajat for about five months in connection with this case. I cannot too strongly express my disapproval of the seriousness attached to this case brought on such apparently exaggerated charges because a Police Officer happened to be the complainant.

15. I agree in rejecting this reference.

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