Subhlal Gope And Another v. State Of Bihar .

1. On 6th June, 1965 Gangiya Gwalin lodged first information report against seven accused persons including the two petitioners alleging that in the previous night all of them variously armed had been to her house and on the order of petitioner Budhlal Gope, petitioner Subhlal Gope set fire to the house, as a result of which she sustained a loss to the extent of Rs. 2,000/-, After investigation, police submitted a final report that the case was false. On 5th June, 1965 Gangiya Gwalin filed a complaint petition before the Sub-divisional Magistrate making further allegations that when she wanted to come out of her house, it was chained from outside and that as a result of the fire her infant daughter was partly burnt, which subsequently resulted in her death. In her complaint petition Gangiya Gwalin made allegations against the conduct of the Sub-Inspector of Police. The Sub-divisional Magistrate directed a judicial inquiry into the matter. On receipt of the report of inquiry, he took cognizance in the case against all the seven accused persons. One of the accused, namely, Chaturi Gope died during the pendency of the case. The case was transferred to Shri S.K.P Singh, Munsif Magistrate, Gaya, for disposal that Magistrate in absence of the complainant and her witnesses discharged the accused persons on 25-2-1966 under Section 209(2) of the Cr PC (hereinafter to be referred to as the Code). It appears that subsequently on 1-4-1966 the learned Magistrate reviewed that order and proceeded with the commitment inquiry under chapter XVIII of the Code of Criminal Procedure. These two petitioners along with four other accused persons were committed to the court of Session where the trial proceeded.

2. The defence was that on account of enmity, the complainant herself set fire to her house and in order to wreak vengeance falsely implicated the accused persons.

3. The learned Assistant Sessions Judge found all the six accused persons guilty of offences under Section 457 of the Indian Penal Code and convicted and sentenced each of them to undergo rigorous imprisonment for a period of one year. He further found petitioner Subhlal Gope and petitioner Budhlal Gope guilty under Sections 436 and 436/109 of the Indian Penal Code respectively and convicted and sentenced each of them to undergo rigorous imprisonment for a period of three years and also to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for a further term of three months. He further directed that the sentences against Subhlal Gope and Budhlal Gope would run concurrently. The learned Judge passed an order that the fine, if realised, would go to the complainant by way of compensation.

4. On appeal, the Sessions Judge believed the prosecution story that it was on the order of petitioner Budhlal Gope that Subhlal Gope had set fire to the house of the complainant. Consequently the learned Judge upheld the order of conviction and sentence passed against these two petitioners. So far the remaining four accused persons were concerned, the learned Judge found that they had not taken part in the occurrence and hence he allowed the appeal and set aside the order of conviction and sentence. Subhlal Gope and Budhlal Gope have therefore, filed this revision application.

5. Learned counsel for the petitioners has attacked the order of conviction and sentence on the ground that the learned Magistrate, who was conducting the commitment proceeding, had no jurisdiction to review the order of discharge passed by him and consequently the entire commitment proceeding and consequently the trial in the sessions court following were vitiated. In this connection the counsel submitted:—

(1) The learned Magistrate could not have recalled the order of discharge in view of the provisions of Section 369 of the Code.

(2) The learned Magistrate had no power to proceed with the commitment inquiry after the order of discharge, inasmuch as he had become functus officio.

6. In connection with the first point it has been submitted that there is no provision in the Code for restoration of the case which has ended in discharge of the accused persons, rather there is a provision to the contrary in Section 369 of the Code. It is true that under Section 5 of the Code, investigation, inquiry or trial of any offence under the Indian Penal Code has to be in accordance with the provisions contained in the following sections of the Code. The procedure for disposal of a case is prescribed to advance administration of justice. It is not easy to visualise all possible contingencies and as such it has been well recognised by various authorities that a court of justice, in its very constitution, has inherent powers as are necessary to do the right and to undo a wrong in course of the administration of justice. Unlike Section 151 of the CPC there is no specific provision in the Code conferring such inherent power on subordinate criminal courts. The decisions, however, are that such criminal courts are justified in acting in exercise of the in herent power which they possess in their very constitution subject to the qualification that such power cannot be invoked, so as to override the express or implied provisions of the Code.

7. In the instant case the learned Magistrate had passed an order of discharge purporting to be under Section 209(2) of the Code. It appears that on 25-2-1966 the complainant had filed Hazri of the witnesses, but those witnesses could not be present when the case was called out Accordingly the learned Magistrate closed the prosecution case and for want of evidence discharged the accused persons. That very day a petition was filed by the complainant that she and her witnesses had gone to call the lawyer who was then working before the Sub-divisional Magistrate and in the meantime the accused persons were discharged. This assertion of the fact was not controverted and consequently the learned Magistrate reviewed that order of discharge and restored the case. This he did in order to do justice in the case.

8. Learned counsel for the petitioners has submitted that order of discharge cannot be reviewed in view of the provisions of Section 369 of the Code. Section 369 provides that no court, when it has signed its judgment shall alter or review the same, except to correct a clerical error, save as otherwise provided by the Code or by any law for the time being in force. It has been contended that the order of discharge is judgment as contemplated by Section 369 of the Code and therefore it could not be reviewed on account of the express prohibition contained in Section 369 of the Code. True it is that if the order of discharge be considered as judgment then in view of the express provision prohibiting its review, the learned Magistrate would have no Jurisdiction to recall that order and proceed with the commitment proceeding. If, however, that order be not judgment as contemplated by Section 369 of the Code then, there being no specific provision prohibiting review of such order, in my opinion such order can be reviewed in exercise of the inherent power for the ends of justice. Therefore, it is now to be examined if the order of discharge as passed by the learned Magistrate, is a judgment as contemplated by Section 369 of the Code.

9. ‘Judgment’ has not been defined in the Code of Criminal Procedure. In the case of Dr. Hori Ram Singh v. Emperor, AIR 1939 FC 43 after a full review of the English Law and the provisions of the Code of Criminal Procedure, Sulaiman, J. pointed out that under the Code of Criminal Procedure also like the English law a judgment is intended to indicate the final order in a trial terminating in either the conviction or the acquittal of the accused. That is to say, a judgment in a criminal case means a judgment of conviction or acquittal. This view was affirmed in another decision of Federal Court in Kuppuswami Rao v. The King, AIR 1949 FC 1. A question as to what is a judgment arose for consideration in State of Bihar v. Ram Naresh Pandey, AIR 1957 SC 389 there it has been observed that the word ‘judgment’ is a word of general import and means only “judicial determination of decision of a court”. In view of such general meaning of the word ‘judgment’ in the context of Section 494 of the Code it was observed that there was no reason to think that it was not applicable to an order of committal which terminates the proceeding so far as the inquiring court is concerned. That was a case where the Public Prosecutor filed an application withdrawing the criminal case during the commitment proceeding and the question had arisen if it could be done in view of the provisions of Section 494 of the Code and it was in that connection that the point as to whether judgment would include the order of committal had arisen. In view of the general meaning of the word ‘judgment’ referred to above it was held in the context of that particular section that the order of committal was a judgment though it was not an order of conviction or acquittal but it is significant to note that in that very decision there has been further observation that in the context of Chapter XXVI of the Code in which chapter Section 369 can be found the word ‘judgment’ may have a limited meaning. So far the question of applicability of Section 369 of the Code is concerned, the word ‘judgment’ has to be read in the context of the provisions of Chapter XXVI of the Code. That would naturally mean decision in a case ending in conviction or acquittal of the accused an order which is not of conviction or of acquittal can be a judgment in general sense of the term but not in the sense as contemplated by Section 369 of the Code. This limited meaning to the word ‘judgment’ for the purpose of Section 369 of the Code has been in a way recognised in the aforesaid decision of the Supreme Court The instant order not being an order of acquittal or conviction, it is not a judgment as contemplated by Section 369, and as such the provisions contained in that section forbidding review of judgment may have no application in the case of order of discharge. There are certain orders in the Code of Criminal Procedure which are in terms final and therefore by necessary implication it would follow that such orders cannot also be reviewed in exercise of the inherent power inasmuch as that would amount to overriding the implied provisions of the Code. The order of discharge passed in the instant case is not a decision on merit and is not a judgment as contemplated by Section 369 of the Code and hence any prohibition contained in that section does not stand as a bar to the review of that order. There is no other provision in the Code of Criminal Procedure forbidding review of such order of discharge. In that view of the matter the wrong could have been corrected by the learned Magistrate under the inherent power which he possessed even though there is no specific provision for review of such order in the Code itself.

10. In support of the aforesaid view, certain decisions have been cited by learned counsel for the opposite party. In In re, Wasudeo Narayan Phadnis, AIR 1950 Bom 10, it has been held, relying upon Full Bench decision of the Calcutta and Madras High Courts that an order of discharge passed under Section 259 of the Code on account of the absence of the complainant, being not on a consideration of the merits of the case, would not amount to a judgment and consequently the Magistrate was not debarred from reviewing such order. In that judgment the argument that there was specific provision for further inquiry by superior court and as such the review should not be permitted was repelled with an observation that Section 436 of the Code was an enabling section and did not take away the jurisdiction vested in a Magistrate to rehear the complaint which was dismissed on account of the absence of the complainant.

11. Yet there is another decision of the Mysore High Court in Rayappa v. Shivamma, AIR 1964 Mys 1 holding that the Magistrate has got jurisdiction to revive the complaint dismissed for default under Section 259 of the Code.

12. Then there is another judgment of this Court in Raghubans Prasad v. State, AIR 1961 Pat 397. That was a case where upon a consideration of the documents before him and after hearing the parties the Magistrate formed an opinion that the facts did not disclose the commission of any offence and as such discharged the accused persons under Section 251-A(2) of the Code. An application was filed for revival of the proceeding on the grounds that certain matters had not been considered. Notice was issued to the accused to show cause why the previous proceeding should not be revived. Cause was not shown and on a fresh consideration of the record and the case diary the Magistrate felt satisfied that the discharge order was not justified and that there were sufficient materials to establish prima facie offences under Sections 379 and 420 of the Indian Penal Code and accordingly he recalled the order of discharge and summoned the accused persons. An argument was advanced in this Court in revision against that order that the Magistrate, after passing the order of discharge, had become functus officio and was unable to rehear the case. A reference was made to Section 369 of the Code and it was contended that the revival of the proceeding would amount to reviewing the order which was prohibited by Section 369 of the Code. On a consideration of the various decisions of different courts it was held by this Court that the order of discharge was not a judgment and as such it did not come within the mischief of Section 369; and as such the Magistrate was quite competent to revive the original proceeding even when his order of discharge was not set aside by the superior court.

13. There is another decision of this Court in Criminal Revn. No. 2618 with Criminal Revn. No. 2622 of 1968 (Pat.) (Keshab Prasad Bhagat v. Ramnarain Choubey) decided on 14-4-1969. That was a case where in absence of complainant the complaint was dismissed for default. On the following day on an application by the complainant the learned Sub-divisional Magistrate allowed his prayer for restoration of the complaint. An argument was advanced that the learned Sub-divisional Magistrate had no jurisdiction to review the order dismissing the complaint found by him. A number of decisions were referred to, on a consideration of which, relying upon the Full Bench decision of the Calcutta and Madras High Courts as also a decision of this Court in R.N Choubey v. P. Jain*, AIR 1949 Pat 256 which appear to have been approved in a decision of the Supreme Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 this Court held that the Sub-divisional Magistrate had jurisdiction to accept the petition for restoration of the complaint which had been dismissed for default of the appearance of the complainant in the proceeding before him.

14. The learned counsel for the petitioners has, however, relied upon some decisions in support of his contention that the order of discharge could not be reviewed. The first case referred to is a decision of the Bombay High Court in Queen Empress v. Ganesh Ramkrishna, (1899) ILR 23 Bom 50. The facts of that case were quite different and I do not see that decision has got any application to the point involved in the instant case. That was a case where the Sessions Judge had refused to revoke a sanction granted by subordinate court under Section 195 of the Code. Such order was held to have been passed in a criminal proceeding in revision. That being so it was held that any order in such proceeding was final and could not be reviewed. In the instant case there is no question of any final order having been passed by the Magistrate.

15. Another case referred to is a decision of Hyderabad High Court in S.A Irani v. P.L Narsimha Sastry. AIR 1957 Hyd 26. It has been held in that case that a court had no jurisdiction to restore the complaint, as there was no express provision in the Code for such restoration after the complaint was dismissed under Section 259 of the Code. It was further held that the remedy of the complainant would be to file a fresh complaint upon which the Magistrate could take cognizance under Section 190 of the Code. In that case the learned Judge distinguished the decision of the Bombay High Court in In re, Wasudeo Narayan Phadnis's case, AIR 1950 Bom 10 referred to above, on the ground that was a case where the complainant had absented himself at the stage of trial. But I do not see any point in the ground of distinction. In the Hyderabad case the Full Bench decision of the Calcutta High Court and the Madras High Court were not considered. Full implication of the applicability of Section 369 of the Code as standing bar to the review of the order passed was not considered. With respect I do not agree with the view that where a complaint is dismissed and though a fresh complaint could be filed, the original complaint could not be revived. If on the same cause of action, a fresh complaint could be filed there should be no reason why instead of driving the complainant to unnecessary harassment of instituting a fresh case the original complaint could not be revived inasmuch as there is no provision in law to the contrary. Such a view has been expressed in some of the decisions referred to above.

16. The next case relied upon by learned counsel is a decision in Bhagwan Sahai…Applicant; v. Moti Lal…Complainant-Opposite-Party., AIR 1953 All 402. That is a decision of a single Judge, wherein it has been held that revival of complaint which has been dismissed under Section 259 of the Code is not provided in law. The view expressed therein is not in conformity with the views expressed by majority of the High Courts in Division Bench and Full Bench decisions. Further, it would appear that in this case the learned Judge did not consider the implication of the inherent power of a criminal court. Simply in absence of any provision in the Code for the revival of the complaint which has been dismissed under Section 259 of the Code it has been observed that no order reviving the complaint could be passed.

17. The learned counsel for the petitioners has further relied upon the aforesaid decision of the Supreme Court in AIR 1957 SC 389 in support of his contention that the order of discharge being a judicial determination or a decision of a court was a judgment and as such it could not be reviewed. It has however, been noted above that in that decision the Supreme Court held that the order of committal is a judgment in the context of Section 494 of the Code and it has been further observed that the word ‘judgment’ may have restricted meaning for the purpose of Chapter XXVI of the Code. That is to say, by implication the observation of the Supreme Court was that for the purpose of Chapter XXVI of the Code a judgment in a criminal proceeding means the judgment of acquittal or conviction, as was held in the aforesaid decisions of the Federal Court According to the Supreme Court, the word ‘judgment’ may have different meaning in different context. In the context of Chapter XXVI of the Code which contains Section 369 as well, it cannot be said that the word ‘judgment’ would include an order of discharge on technical ground.

18. The learned counsel for the petitioners has further relied upon a decision of the Orissa High Court in Krushna Mohan v. Sudhakar Das, AIR 1953 Orissa 281 and also another decision of Allahabad High Court in Shamshul Haq v. Civil Judge, Moradabad, 1964 All LJ 668. Those are cases where the view that the inherent jurisdiction could be exercised in appropriate cases in absence of any provision of law to the contrary has been accepted. It was because of the facts and circumstances of the case then under consideration that it was held that the orders of restoration passed in those cases were contrary to the provisions of law and that such orders could not be passed in exercise of the inherent jurisdiction of the court. These cases, therefore instead of helping the petitioners do lend support to the contention of the other side that in appropriate cases a criminal court has got inherent power to pass any appropriate order to undo the wrong committed provided it is not forbidden either expressly or impliedly by any of the provisions in the Code.

19. In view of what has been said above. I am of the opinion that the order of discharge passed by the learned Magistrate in absence of the complainant was not a judgment within the meaning of the word as contemplated by Section 369 of the Code and as such that section did not stand as a bar to the learned Magistrate exercising his inherent jurisdiction for the purpose of reviving the criminal prosecution which in his opinion was wrongly terminated by the discharge order. There being no provision in the Code, either express or implied to the contrary, in my opinion, the learned Magistrate had inherent power to undo the wrong by recalling the order of discharge passed by him. Hence the commitment proceeding thereafter and the subsequent trial could not be said to have been vitiated.

20. The next point that has been submitted by learned counsel for the petitioners is that the learned Magistrate, who was a transferee court, could not review the order, inasmuch as he was functus officio after passing the order of discharge. In view of what has been said above it must be held that the court in which the case was pending and which has passed the discharge order had certainly jurisdiction to recall that order and continue the proceeding. I do not see any force in this contention of the learned counsel.

21. It has next been submitted by the learned counsel for the petitioners that in view of the fact that certain statements were made in the complaint which were not originally made in the first information report lodged by the complainant the trial court should not have placed reliance upon the evidence of the witnesses and should have rejected the prosecution case. This is a matter relating to the appreciation of the evidence and this Court in revision cannot enter into the consideration of the evidence when it is found that the courts below have considered this aspect and in spite of such discrepancy they preferred to rely upon the evidence of the complainant and other witnesses in support of their findings that the prosecution has established its case as against these petitioners.

22. The last submission of the learned counsel for the petitioners is that the sentence is a bit severe. Having regard to the facts and circumstances of the case, I do not think that the sentence is at all severe. In view of what has been said above, there is no substance in this revision application. It is accordingly dismissed.

23. Revision dismissed.