Md. Nabi Akhtar v. Hasnu Mian And Others

S.P Singh, J.:— This appeal by special leave under section 417(3) of the Criminal Procedure Code has been preferred by one Md. Nabi Akhtar of Nawadah, Police station Nawadah, district Gaya against the order of acquittal dated the 8th February, 1901, passed by a Munsif Magistrate of the first class, Nawadah in a case under sections 147 and 380 of the Indian Penal Code, instituted against Hasnu Mian, his brother Yusuf Mian and his son, Moizuddin alias Munshi Mian of the same place.

2. The facts giving rise to this appeal briefly stated are the following:

It is said that Md. Nabi Akhtar was holding a Bidi shop in a portion of plot No. 4745 in Mohalla Par-Nawadah on the Nawadah Gaya road in 1959-1900. Hasnu, one of the respondents) had taken settlement of some land appertaining to plot No. 4746 adjacent to the shop of the appellant and began to construct a house thereon on the 19th of December 1959, by dispossessing the appellant from a portion of his shop. The appellant lodged an information at Nawadah police station which gave rise to the initiation of a proceeding under Section 144 Cr. P.C and a constable and a choukidar were deputed to the spot to prevent the breach of peace between the parties. The appellant's allegation is that on the 1st January 1900, when the constable and the choukidar were temporarily absent, the respondents, along with 10 or 15 persons, came armed with lathis, looted the articles kept in the shop of the appellant, assaulted him and demolished the northern and eastern walls. The appellant thereafter went to Nawadah police station, but when he found that the Officer-incharge was not inclined to take any action, he telephoned to the Superintendent of Police Gaya. But, not being able to contact him, he contacted the Deputy Superintendent of Police of that place and on the direction of the latter, he went to the Deputy Superintendent of Police, Nawadah, and gave him a written report. The said Deputy Superintendent sent that report to the police station on the basis of which the Assistant Sub-Inspector (P.W 15) drew up a first information report and took up investigation. He forwarded the appellant to the hospital for the examination of his injuries and on inspection of the shop of the appellant he found some walls demolished. He got the area of the disputed land measured by an Amin and after conducting the investigation for several days and after the examination of some witnesses, he made over charge of the case to Sri N.K Singh.

3. On 2.1.1960, Dr. J.M.M Tudo (P.W 11), incharge of the Nawadah hospital, examined the appellant and found one abrasion ¼″ × ¼″ × 1″ above the right eye-brow. He also found two linear ecchymosis apart, ½″ × ½″ apart, 4″ in length on the waist right side. He further found another abrasion ½″ × ½″ on the right knee. He also noticed a defused swelling on the right shoulder. According to him, all these injuries were simple in nature caused by some hard blunt substance and the injuries were within 1½ days. During the course of the investigation the appellant filed a protest petition against the police before the Sub-divisional Magistrate and eventually on 1-3-1960 he filed regular petition of complaint. The Sub-divisional Magistrate of Nawadah examined the appellant on solemn affirmation and passed the following order:

“Exd the complainant on S.A Remind S.I Police to submit his report by 17-3-1960”.

4. On completion of the investigation, the Police submitted final report. The Sub-divisional Magistrate, however, considered the report in the light of the allegation made in the complaint petition and passed an order on 25-4-60 summoning the respondents under sections 380 and 323 I.P.C He transferred the case on the same day to the Munsif Magistrate of Nawadah for disposal.

5. As many as 16 witnesses were examined on behalf of the complainant. The learned Magistrate, on a consideration of the evidence, however, found that the charges against the respondents had not been satisfactorily proved. He accordingly acquitted all the three respondents. Being aggrieved by this order of the learned Magistrate, the appellant came to this Court and Hied the pzesent appeal after obtaining a special leave of this court.

6. Mr. Jyoti Narain, appearing for the appellant has urged that the order of acquittal passed by the learned Munsif-Magistrate is not at all justified in this case inasmuch as the material evidence was shut out by the court below and further the learned Magistrate failed to give proper consideration to the evidence which was already on the record. According to Mr. Narain, the learned Magistrate omitted to consider the question of possession and the fact that the appellant had received injuries at the hands of the respondents. Mr. S. Sarwar Ali appearing for the respondents has urged, on the other hand, that the evidence on the record as adduced on behalf of the prosecution was not at all sufficient to justify a conviction of the respondents and as such the order of the learned Magistrate is quite correct. He has also raised a preliminary objection to the effect that this appeal is not maintainable because the case in question was not a case instituted upon a complaint and so no appeal could he under section 417(3) Cr. P.C

7. In the first place, I would like to examine the preliminary objection raised in this case. Mr. S. Sarwar Ali'a contention is that this case was instituted on the basis of the first information report lodged by the appellant at Nawadah police station and that the respondents were summoned by the Sub-divisional Magistrate as a result of the investigation made by the police officers. According to him, the petition of complaint filed by the appellant on 1-3-1960 in the court of the Sub-divisional Magistrate did not affect the character of this case which was already under police investigation then and the learned Sub-divisional Magistrate issued process in this case upon the receipt of the Police report and not on the basis of the complaint filed before him on 1-3-1960. According him the complaint case had been kept pending and it got merged in the police case. In this connection he relied upon a Bench decision of this court in the case of ??? Singh v. Daroga Singh, A.I.R 1962 Pat 27 and referred to the following observation:

“Where a complaint case is amalgamated with the case instituted on the police charge sheet the effect of the order of amalgamation is that the complaint case is merged with the police case. It loses its identity and separate existence as it merges with the police case which retains its identity. Hence the case cannot be said to have been ‘instituted upon complaint’ within the meaning of sub-section (3) of section 417”.

8. Mr. Narain has, on the other hand, referred to a decision of the Supreme Court in the case of Jamuna Singh v. Bhadai Shah, 1964 BLJR 47 : (AIR 1964 S.C 1541) for the proposition that a magistrate takes cognizance of an offence as soon as he examines complainant on solemn affirmation and that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The observation of their Lordships of the Supreme Court in the aforesaid case is to the following effect:

“The Code does not contain any definition of the words ‘institution of a case’. A case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Section 190(1) of the Code of Criminal Procedure contains the provision for cognizance of offences by a Magistrate. It provides for three ways in which such coguizance can be taken. The first is on receiving a complaint of facts which constitutes such offence; the second is on a report in writing of such facts that is, facts constituting the offence made by any police officer, the third is upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed. An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence, a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under various provisions of Chap. XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offence mentioned in the complaint. In the present case the Magistrate after completing the examination under S. 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words:

‘Examined the complainant on solemn affirmation. The offence is cognizable one. To S.I for instituting a case and report by 12-12-56’.

9. Though the Magistrate used the words ‘for instituting a case’ in his order, he was actually taking action under S. 202 of the Code of Criminal Procedure, that being the only section under which he was in law entitled to act. The fact that the Sub-Inspector of police treated the copy of the petition of complaint as a first information report and submitted ‘charge sheet’ against the accused persons cannot make any difference. The report made by the Police Officer though purporting to be a report under S. 173 of the Code of Criminal Procedure should be treated in law to be a report only under S. 202 of the Code of Criminal Procedure.

Cognizance having already been taken by the Magistrate before be made the order there was no scope of cognizance being taken afresh of the same offence after the Police Officer's report was received. There is thus no escape from the conclusion that the case was instituted on complaint filed by the complainant and not on the police report submitted later by the Police Inspector. In such circumstances appeal did lie under S. 417(3) of the Code of Criminal Procedure against the order of acquittal.

In so far as the learned Magistrate asked the police to institute a case he acted irregularly. There is absolutely no reason, however, to think that the irregularity has resulted in any failure of justice.”

10. Mr. Narain's contention therefore, is that in the instant case even though Nawadah Police had instituted a case on the basis of a first information, lodged on the 1st January, 1980, and was conducting the investigation, the Sub-divisional Magistrate of Nawadah had not taken cognizance of this case till 1-3-60, when he examined the complainant (the appellant) on solemn affirmation and it was on that date that this case was instituted within the meaning of sub-section (3) of S. 417, Criminal P.C The consideration of the police report by the Sub-divisional Magistrate on 25-4-60 and the passing of the subsequent orders regarding the transfer of the case to the Munsif Magistrate was, according to the learned counsel, a continuation of the proceeding started on the basis of the petition of complaint and as such this case for all purposes was one instituted upon a complaint. Mr. Sarwar Ali, on behalf of the respondents has contended that the order dated 25-4-60 passed by the Sub-divisional Magistrate would, how-ever, show that he took cognizance of the case against the respondents on that date after considering the final report submitted by the police and after differing from the recommendation of the police, he ordered for the trial of the respondents under Ss. 380 and 323, I.P.C His argument, therefore, is that the present case shall be deemed to have been instituted on a police report and not on the basis of the complaint and it was for this reason that the procedure followed in this case at subsequent stages was the one specified in S. 251A, Criminal P.C and not the procedure as specified in Ss. 252 to 259, Criminal P.C

11. Learned counsel for the appellant relying however, on the Supreme Court decision in the case of Jamuna Singh, 1984 BLJR 47 : (AIR 1964 SC 1541) referred to above, has urged that the magistrate having once taken cognizance, there was no scope for cognizance being taken afresh by the learned Sub-divisional Magistrate of the same offence on a subsequent date on receipt of the police report. A careful perusal of the Supreme Court case will show that there is great force in the argument of the learned counsel for the appellant and the decision of this Court in AIR 1962 Pat 27 is clearly distinguishable from the facts of this case inasmuch as in that case the complainant after filing a protest petition and having been examined on solemn affirmation, took no step in his case because the police submitted charge sheet in that case against the accused and after the receipt of the charge sheet the learned Sub-divisional Magistrate ordered the complaint case to be amalgamated with the case started on the police report. The effect of the order of amalgamation passed by the learned Magistrate was construed by their lordships of this Court to be that the complaint case in which the complainant took no interest lost its identity and it merged with the police case in which charge sheet had been submitted. In the present case we find that the complainant was taking active steps on all the dates since after the filing of the petition of complaint and that he had engaged a separate lawyer also for the conduct of his case, even though the Magistrate, to whom this case was transferred, followed the procedure specified under S. 251-A, Criminal P.C, i.e, in respect of a case instituted on a police report. Furthermore, there was no order of the Magistrate for the merger of the complaint case with the police case especially because the police had submitted final report and had not recommended the trial of the respondents. Thus, in view of these facts and also regard being had to the clear observation of the Supreme Court, the present case shall be deemed to have been instituted on a complaint and as such an appeal against the order of acquittal is competent under S. 417(3), Criminal P.C

12. The question, however, is as to what would be the effect of the procedure which the trying Magistrate followed in this case. According to the learned counsel for the appellant, the whole trial should be deemed to be illegal inasmuch as this case having been instituted on the basis of a complaint, the proper procedure to be followed by the trial Court was the one specified in Ss. 252 to 259, Criminal P.C But instead of following that procedure the learned Magistrate followed the procedure as laid down under S. 251-A, which relates to the case instituted on police report. Mr. Narain has cited in this connection two decisions of the Rajasthan High Court, namely, the State v. Salu, AIR 1963 Raj 98, and Ghisia v. State, AIR 1959 Raj 260, in support of his proposition. He has also, referred to a Privy Council decision in the case of Pulukuri Kottaya v. Emperor, AIR 1947 P.C 67, in support of the proposition that when a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under S. 537.

13. Mr. S. Sarwar Ali, on the other hand, placed reliance on three decisions of the Supreme Court, namely, in the cases of Purshottam Jethanand v. State of Kutch, AIR 1954 S.C 700; Willie (William) Slaney v. State of Madhya Pradesh, (S) AIR 1956 S.C 116 and Gopal Das Sindhi v. State of Assam, AIR 1961 S.C 986. The case reported in AIR 1954 S.C 700, will show that where a Magistrate of the First Class though not empowered to take cognizance of an offence under S. 190(1)(a) and (b), did so in good faith the defect in the absence of any prejudice to the accused was cured by S. 529, Criminal P.C The case reported in AIR 1961 S.C 986, will show that if in a case which is triable as summons case, the Magistrate adopts the procedure prescribed for the trial of a warrant case, he commits an irregularity, which, however, does not vitiate the proceeding and is curable by the provisions of S. 537, when no prejudice to the accused is established. In the case reported in (S) AIR 1956 S.C 116, their Lordships have considered the scope and object of the Criminal Procedure Code, and the effect of the disregard of its provisions by making the following observations;

“The Code is a Code of Procedure and like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. 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 does, 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 venial by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That broadly speaking, is the basic principle on which the Code is based”.

14. A review of these cases will show that a wrong procedure adopted by a Court in the trial of an accused cannot by itself vitiate the proceeding unless it has caused serious prejudice to the accused and has consequently led to the failure of justice. In the instant case, we find that the accused never objected to the legality of the procedure followed by the Court below nor were they in any way prejudiced during the course of the trial. The complainant, however, at one stage made a prayer before the learned Magistrate that this case be treated as a complaint case and that he might be allowed to conduct the prosecution through his lawyer independent of the State lawyer. The Court below did not accept the prayer of the complainant but all the same his lawyer was allowed to assist the State Lawyer and bring all the relevant materials on the record in support of the prosecution. It would thus appear that the irregularity complained of on behalf of the appellant did not result in the miscarriage of justice. There would also appear no fundamental difference between the two procedures, i.e one envisaged under S. 251-A of the Code of Criminal Procedure and the other in S. 252 to 259 of the Code except that the accused gets larger facilities for his defence in the latter procedure.

15. The whole object of the modified procedure as contained in the new S. 251-A of the Code is to ensure expeditious disposal of the warrant cases instituted on police report so that the accused may either be quickly discharged if there is no case against him or the trial is brought to a speedy end by acquittal or conviction, as the case may be. As mentioned above, the accused in this case never objected to the procedure followed by the trial court. No objection has been raised on their behalf in this appeal as well. No prejudice was caused to them nor to the complainant. I would accordingly negative the contention of Mr. Narain to the effect that the whole trial in this case was vitiated by the wrong procedure adopted by the learned magistrate.

16. Now, coming to the merits of the case, I find that 5 persons, namely Moti Lal (P.W 1), Bachchu Prasad (P.W 5), Sita Ram Sah (P.W), Yasin Mian (P.W 7) and Md. Nabi Akhtar (P.W 10), deposed as eye-witnesses to the occurrence. All of them have unanimously supported the fact that the complainant, Md. Nabi Akhtar, was assaulted by all the three respondents, namely, that he was struck by Yusuf Mian with lathi while the other two respondents assaulted him with slaps and fists. These witnesses have been strongly corroborated by the testimony of the Medical Officer (P.W II) who examined the complainant on the following day and found not less than four injuries on his person. The Investigating Officer (P.W 15) also has testified to the fact that he found injuries on the person of the complainant on the let January, 1900, and forwarded him to the hospital. Three of the eye-witnesses, namely, P.Ws 1, 6 and 7 had their shops close to the shop of the complainant on the Nawadah-Gaya Road and as such their presence at the time of the occurrence cannot be said to be unexpected. There is nothing in the cross-examination of these witnesses to impeach their credibility and to discard their evidence altogether. The learned court below has discarded the testimony of these witnesses on the ground of minor discrepancies, which, in my opinion, are not at all sufficient to throw out the prosecution story altogether. According to the learned magistrate, the complainant did not give out the story of assault implicating the respondents when he made a written report to the Deputy Superintendent of Police on the 1st January, 1960. A perusal of that report (Ext. 1), however, shows that the complainant in paragraph 7 of his report did state the fact of his having been assaulted by respondent Hasnu Mian and his brother and son. There is, therefore, no material discrepancy in the evidence of the complainant or the eye witnesses regarding the assault.

17. No doubt, there are some material discrepancies in the testimony of the witnesses so far as the removal of the articles from the shop of the complainant by the accused are concerned inasmuch as according to the rickshaw puller (P.W 2) some articles kept in the shop of Nabi Akhtar were taken out by the respondents and their other associates, placed on his rickshaw and taken away towards an orchard. From the testimony of the other witnesses, however, it appears that the articles of the shop were merely scattered in front of the shop. Furthermore, the testimony of the rickshaw puller, as has been discussed by the court below, does not inspire confidence. In these circumstances I am inclined to agree with the finding of the court below to the effect that charge under S. 380 I.P.C had not been fully established. But, so far as the story of assault on Nabi Akhtar by the respondents is concerned, the evidence, as discussed above, is quite convincing and there is no reason for rejecting this part of the story. As, however, the participation of the other accused in the occurrence was not proved, the charge of rioting under section 147 I.P.C also fails; but all the same, the respondents can be held liable for their individual acts of assault. I would accordingly hold them guilty of the minor offence under S. 323 I.P.C and convict them of the offence under that section. As regards sentence, I think a fine of Rs. 25/- against each and in default to undergo rigorous imprisonment for a period of one week each, will meet the ends of justice. In the result, the appeal is allowed according to the terms mentioned above and the order of acquittal passed by the learned Munsif Magistrate dated the 8th February, 1961, is set aside to that extent, and the respondents are convicted and sentenced, as indicated above.

Ramkatna Singh, J.:— I agree.

JH/LGC/D.V.C

18. Appeal allowed accordingly.