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  • Jwala Prasad, J.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This matter is an application challenging an order of the Additional Magistrate of Dhanbad dated 15th September 1917, which rejected the petitioners' request to the District Magistrate for transfer of a criminal trial then pending before the Deputy Magistrate, Mr. S.N. Sen.

The petitioners were on trial for offences under Sections 147 and 323 of the Indian Penal Code (IPC) on the complaint of Wajid Khan. Wajid's complaint was filed on 21st May 1917 for an incident said to have occurred on 18th May 1917. Wajid Khan is noted to be now dead. Prosecution witness examination occurred from 27th July and finished by 18th August 1917; subsequent adjournments took the hearing through early September. The petitioners sought adjournments and moves to quash or to transfer the trial; an application under Section 528 CrPC to the District Magistrate on 15th September 1917 was rejected. The petitioners then instituted proceedings in this High Court by a petition dated 4th October 1917.

The petitioners relied on a prior prosecution arising from a complaint by Lalu Khan relating to the same date (18th May). In that earlier proceeding, one accused, Hayat Khan, was summoned and on 31st August 1917 was convicted by the same Deputy Magistrate under Section 352 IPC. In the earlier judgment the Magistrate observed: “The accused has not been charged under S.147, I.P.C, as there was no common intention to begin with to assault Lalu Khan.”

Legal Issues Presented

  1. Whether the present trial for offences under Sections 147 and 323 IPC (based on Wajid Khan's complaint) is barred by Section 403 of the Criminal Procedure Code due to the earlier trial and conviction relating to Lalu Khan's complaint.
  2. Whether Sections 236 and 237 CrPC applied so as to prevent framing of distinct charges in the present matter arising from the same transaction.
  3. Whether cognizance in the present case was improperly taken under Section 190(c) (which would have disqualified the Magistrate from trying the case), or whether it was validly taken under Section 190(a) on complaint.
  4. Whether the identification/naming issue (complaint naming "Jouri Khan" while the arrested person is "Sarwar Khan") invalidates the Magistrate's cognizance or the trial of petitioner No. 2.
  5. Whether the case should be transferred from Deputy Magistrate S.N. Sen to another Magistrate on grounds of alleged prejudice or inability to have an impartial trial.

Arguments of the Parties

Petitioners' Arguments

  • The trial under Sections 147 and 323 IPC is barred by Section 403 CrPC because a related earlier proceeding (Lalu Khan's complaint) led to conviction of one accused (Hayat) and the Magistrate observed lack of common intention to assault Lalu — which petitioners say should preclude the present charges.
  • The Magistrate purportedly took cognizance under Section 190(c) (information other than by complaint), which, the petitioners argue, disqualifies him from trying the case himself.
  • Petitioner No. 2 contends the complaint names "Jouri Khan", not "Sarwar Khan", so the identification and process against him are improper.
  • The petitioners seek transfer of the trial from Deputy Magistrate S.N. Sen on the ground that the Deputy Magistrate in the earlier Lalu case disbelieved the testimony of petitioner No. 1 (Hayat), which, they assert, would prevent an impartial trial by the same Magistrate.

Opposite Party's (Prosecution/Respondent) Position

  • The respondent produced the complaint petition of Lalu Khan and pointed to the factual distinction between the assaults on Lalu and on Wajid: Lalu was assaulted first; Wajid was allegedly assaulted later when he interposed himself.
  • The respondent contended that cognizance in the Wajid complaint was taken under Section 190(a) CrPC on a complaint, not under Section 190(c).
  • Regarding identity, the respondent relied on Lalu's evidence and identification of the person produced in court on 11th July 1917; the complaint also included the phrase “wagarah” (etc.), indicating unnamed persons could be included.
  • The respondent opposed transfer, noting the petition for transfer was made very late — after the prosecution case was almost complete — and that the Magistrate's expressed view in the earlier trial did not by itself justify transfer.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Basireddi v. Khayrat Ali Held that where an accused has been tried on one charge arising out of a transaction (and that trial has terminated), a further charge under certain sections (e.g., S.147 or S.448 in that instance) may not lie in respect of the same facts; specifically applied to prevent a second trial on the same facts. The Court agreed with the principle in Basireddi v. Khayrat Ali to the extent that there cannot be a further trial for an offence under S.147 in respect of the facts already tried in Lalu Khan's complaint. The Court applied that precedent to bar re-trial only as to those facts already adjudicated in the Lalu matter, but held it did not bar trial on the distinct facts relating to the assault on Wajid Khan.

Court's Reasoning and Analysis

The court proceeded through discrete legal and factual analyses, applying statutory provisions and the cited precedent strictly to the material before it.

  1. On the plea under Section 403 CrPC: The court examined whether Sections 236 and 237 CrPC applied so as to make the earlier trial cover the offences now charged. It held that Section 236 applies only where the act or series of acts gives rise to doubt as to which of several offences facts would constitute. The facts in Lalu's complaint, the court found, left no such doubt; hence S.236 did not apply, and S.237 (which follows S.236) was likewise inapplicable.
  2. The court distinguished the two sets of facts: the earlier trial (Lalu's complaint) concerned the assault upon Lalu; the present trial concerns the assault upon Wajid, which, although occurring in immediate succession, arises from a separate set of events — Wajid intervened and was then assaulted. Because the earlier conviction dealt with the assault on Lalu alone, it did not decide whether there was a common intention to assault Wajid.
  3. Applying the precedent Basireddi v. Khayrat Ali, the court accepted that a further trial cannot be had for an offence under S.147 in respect of facts already tried in the earlier case (i.e., the Lalu complaint). The court therefore concluded that the petitioners cannot rely on S.403 to bar a second trial in relation to the facts already adjudicated in Lalu's case.
  4. However, the court held that the assault upon Wajid constituted a distinct offence based on a separate set of facts and must be determined afresh. The present charge under S.147 (as to Wajid) falls within Section 235(1) CrPC and is not barred by S.403. Similarly, the charge under S.323 (voluntarily causing hurt to Wajid) was held to be a separate offence which is not precluded by the earlier conviction for assault on Lalu; the court relied on illustration (g) of S.235 to show that offences of hurt by individual members of an unlawful assembly may be separately prosecuted and convicted irrespective of charges under S.147.
  5. On the point of cognizance, the court rejected the petitioners' contention that cognizance was taken under S.190(c). It found that cognizance of Wajid's complaint was taken under S.190(a) CrPC on complaint, and that the case against the petitioners was not founded on extraneous information or the Magistrate's own suspicion or knowledge.
  6. Regarding identity (Jouri vs Sarwar), the court accepted that Lalu, in evidence, identified the person produced on 11th July as the man referred to in the complaint. The complaint's use of “wagarah” (etc.) was also noted as permissive of unnamed additional accused; therefore the cognizance against Sarwar was proper if he was satisfactorily identified as the person named in the complaint.
  7. On transfer for alleged bias: The court considered timing and substance. The petition for transfer was brought very late — after the prosecution case was almost finished — and thus the delay was “inordinate.” Moreover, the Magistrate's opinion expressed in the earlier Lalu trial with respect to Hayat's defence did not, by itself, establish such prejudice as to require transfer. The decisive issues were factual (whether petitioners assaulted Wajid and whether they were members of an unlawful assembly) and the Magistrate could decide those issues on the evidence. For these reasons (lateness and insufficiency of the asserted ground), the court refused transfer.

Holding and Implications

Application rejected.

Implications and direct effects:

  • The petitioners' application for transfer and for a bar to the trial under Section 403 CrPC is refused; the trial on the charges under Sections 147 and 323 IPC (as they relate to the assault on Wajid Khan) may proceed before the Deputy Magistrate, Mr. S.N. Sen.
  • The court held that Section 403 does bar re-trial only as to facts already adjudicated in the earlier Lalu Khan proceeding, but it does not bar prosecutions based on a distinct set of facts (the assault on Wajid) even if they arose in the same broader transaction.
  • The Magistrate properly took cognizance under Section 190(a) CrPC on complaint, and the identity objection (Jouri vs Sarwar) did not invalidate cognizance where identification in court connected the person to the complaint.
  • No broader new legal principle was laid down by the court; the decision applies statutory interpretation and an existing precedent (Basireddi v. Khayrat Ali) to the facts and therefore does not purport to set new precedent beyond that application.

Signed: V.S/R.K. — Application rejected.

Show full summary ...

    Hayat Khan And Another v. Emperor Opposite Party.

    1. This is an application against an order of the Additional Magistrate of Dhanbad, dated 15th September, 1917, rejecting the application by the petitioners to the District Magistrate for the transfer of the case pending before, the Deputy Magistrate of the District, Mr. S.N Sen, the petitioners having been put upon their trial for offences under S. 147 and S. 323, I.P.C, on the complaint of one Wajid Khan. The complaint of Wajid Khan was filed on 21st May 1917 in respect of an occurrence that was said to have taken place on 18th May, 1917. Wajid Khan is now dead. The witnesses for the prosecution have almost been examined. The examination of the witnesses commenced on 27th July and finished by 18th August, when the case was adjourned to 1st September 1917. On the 1st the case was adjourned to 3rd on account of the inability of the Civil Surgeon to attend on that date for examination. On 3rd the petitioners made an application to the Deputy Magistrate for an adjournment of the case in order to enable them to apply for the quashing of the trial or transfer of the case from the file of the Deputy Magistrate to some other Magistrate. On 15th September an application was made under Section 528 of the Cr PC, to the District Magistrate, which was rejected by him. On 21st September the petitioners again applied to the Deputy Magistrate for an adjournment of the case in order to move this High Court, which they did by their petition dated 4th October, 1917. It is urged on behalf of the petitioners that the present trial of the offences under Ss. 147 and 323 is barred by Section 403 of the Cr PC. This contention is based upon the following facts: One Lalu Khan had filed a complaint for an occurrence which is said to have taken place on 18th May. One of the accused, Hayat Khan, was summoned in that case under S. 352 and was, after trial, convicted on 31st August 1917, by the same Deputy Magistrate, under S. 352. In the judgment of that case the Deputy Magistrate said as follows: “The accused has not been charged under S. 147, I.P.C, as there was no common intention to begin with to assault Lalu Khan.”

    2. I have been shown by the opposite party, who appears to oppose the Rule, a copy of the complaint petition of Lalu Khan. In this petition Lalu Khan complained against Hayat Jouri Khan, and 18 or 19 other persons. It was alleged by him in that petition that he had, lent money to one Satar Khan at an interest of one anna per rupee at about 5 p.m On the day of the occurrence the accused persons asked him why he lent money at the low rate of one anna, and abused him. He protested, whereupon Hayat Khan struck him with a lathi on his right shoulder joint and that Salamat Khan also struck him with lathis and then ran away. After that Wajid, his brother, was assaulted by the accused and was severely injured and could not sit up, and therefore did not come with him. Wajid, in his petition filed on 21st May, after setting out the reason of the occurrence and the details as given by Lalu Khan, said that after Lalu was assaulted with lathis he asked the accused not to do so, whereupon they severely assaulted him. In this complaint of Wajid, Jouri Khan and Hayat Khan, along with others, have been mentioned as accused. Subsequently processes were issued by the Magistrate against Jouri and Hayat mentioned in the complaint of Wajid. Hayat did appear on 28th June, 1917. On 11th July, 1917 the second petitioner appeared in Court, having been sent up by the Police. His name is said to be Sar war Khan. On that very day Lalu Khan was shown petitioner 2, Sarwar Khan, and he said that this was the man named as Jouri Khan in the complaint petition of Wajid. He was therefore proceeded with as the person against whom the warrant of arrest was issued and the two petitioners were therefore put upon their trial.

    3. The judgment of the Magistrate dated 31st August 1917, convicting the accused of an offence under S. 352 with the observation, quoted above, that the accused was not charged under S. 147 as there was no common intention to assault Lalu Khan, is pleaded by the petitioners as a bar to the present trial for charges under Ss. 147 and 323 under which they are now being tried. The plea is based upon Section 403(1) of the Cr PC. In order to apply S. 403(1), it is necessary to see whether under S. 236 any charge could have been framed for the present offences under Ss. 147 and 323. S. 236 only applies when the act or a series of acts is of such a nature that it is doubtful which of the several offences the facts would constitute. The facts disclosed in Lalu's complaint left no manner of doubt as to the offences they constituted. Therefore S. 236 has no application at all: S. 237 only follows S. 236, and is only an enabling section which empowers a Magistrate to convict on a charge which has not been framed under S. 236. So if S. 236 does not apply, S. 237 has also no application. The first trial was on the facts alleged in the petition of Lalu which related to the assault upon Lalu; and the conviction of Hayat, petitioner 1, was under S. 352 for an assault upon Lalu. The present charge related to the facts which led to the attack upon Wajid Khan and has nothing to do with the facts constituting the assault upon Lalu. The present charges are as follows: First: “That you two on or about 18th May, 1917 at Pachgari Bazar, P.S Katras, District Manbhum, with some 20 Kabulis, being members of an unlawful assembly, the common object of which was to assault Wajid Khan, beat him with sticks so severely as to result in his falling down almost senseless and thereby committed an offence punishable under S. 147, Penal Code, and within my cognizance.” Secondly. “That you two on or about the said 18th day of May 1917 at Pachgari Bazar, P.S Katras, District Manbhum, voluntarily caused hurt to Wajid Khan by beating him with sticks and thereby committed an offence punishable under S. 323, Penal Code, and within my cognizance.”

    4. The facts set forth in the two complaint petitions mentioned above will clearly show that Lalu Khan, the complainant in the first case, was first met by the accused and there was an altercation, between them, in the course of which he was assaulted. While he was being assaulted his brother Wajid, complainant in the present case, came up and remonstrated, and was, upon the orders of one of them, severely assaulted. In the course of events that took place in immediate succession, no doubt both the persons are said to have been injured; but certainly they are not said to have been assaulted simultaneously. The assault upon Lalu who was first attacked may not be the result of the common intention or motive of an unlawful assembly. The subsequent assault upon Wajid Khan who came up to remonstrate may be the result of the common intention of the persons roused at once to assault him for his officious interference.

    5. Upon the facts the Magistrate is to enquire and to determine whether there was a common intention or common object on the part of the accused persons in order to assault this man Wajid so as to constitute an offence under S. 147. The Magistrate, enquiring into, the complaint of Lalu Khan, held that no common intention to assault Lalu was proved. He did not and could not hold that there was no common intention to assault Wajid. That was not the point before him to decide. The words that the Magistrate has used, which I have quoted above, will clearly go to show that he knew full well that he was disposing of the case of Lalu Khan only, for he says that “there was no common intention to begin with to assault Lalu.” The petitioners are not going to be tried under S. 147 upon the facts alleged in the complaint petition of Lalu. They cannot, of course, be tried for not under S. 147 for the events that led to the assault upon Lalu, which may be disclosed in the complaint of Wajid which is now the subject-matter of trial. So far as the facts resulting in the assault upon Lalu are concerned, there cannot be a second trial by virtue of S. 403 even if those facts constitute an offence under S. 147, Penal Code. That has been the view taken in the case of Basireddi v. Khayrat Ali(1), where the charge against the accused person was under Ss. 147, 325 and 448, and, the accused having been tried under S. 325, the case terminated upon a compromise between the parties in an acquittal of the accused persons. As regards Ss. 323 and 325, it was held that a further charge under S. 147 or S. 448 cannot lie. I am in agreement so far as that ruling is concerned, and I think there cannot be any further trial for an offence under S. 147 in respect of the complaint of Lalu Khan. But a distinct offence on a separate set of fleets is said to have occurred when, as I have said above, Wajid came upon the scene, and the present charge under S. 147 in respect of the attack upon Wajid under which the accused have been summoned will have to be determined afresh. The present charge under S. 147 under which the petitioners are charged in my opinion would come under Section 235(1) of the Cr PC. This disposes of the objection so far as the charge under S. 147 is concerned. S. 403 does not bar the trial of the accused on the present charge under S. 147, Penal Code.

    6. There now remains the charge under S. 323. There cannot be any doubt that the assault, if any, committed upon Wajid was quite a separate offence and had nothing to do with the assault committed upon Lalu, although both the assaults may have been committed in the course of the same transaction. I would refer to illustration (g) of S. 235 under Cl. (1) of that section, which says that A with six others committed the offence of rioting, grievous hurt and assaulting a public servant. A was separately charged with, and convicted of, offences under Ss. 147, 325 and 152.” The offences under Ss. 323 and 325 committed by the members of an unlawful assembly in a not are separate from the offence of the not itself; and the individual persons found guilty of having caused hurt may be convicted separately and irrespective of the charges under S. 147. The conviction of Hayat for an assault upon Lalu does not bar his trial for the assault upon Wajid. There can be no doubt therefore that S. 403 has no application at all so far as the charge under S. 323 is concerned. This contention of the petitioners is therefore rejected.

    7. The second ground urged by the learned vakil for the petitioners is that cognizance was taken by the Magistrate in this case under S. 190(c) and therefore the Magistrate could not try the case himself. The cognizance of the complaint of Wajid is not disputed to have been taken under S. 190(a) upon the complaint of Wajid. Hence all the offences and all the persons mentioned in the complaint petition as well as those disclosed in evidence were before the Magistrate upon a cognizance taken by him under S. 190(a) upon the complaint of Wajid. The case against the petitioners was not taken cognizance of by the Magistrate upon any extraneous information or upon his own knowledge or suspicion.

    8. It is contended by the petitioner No. 2 that the complaint petition mentions the name of Jouri Khan as the accused, not Sarwar Khan. Well, in the evidence of Lalu Khan call him Jouri or Sarwar he was the person who assaulted Wajid Khan. He was identified by him on the 11th July, 1917, when the man was brought under arrest. It is for the Magistrate to believe or disbelieve Lalu. The complaint petition after giving the names of certain accused adds etc., “wagarah:” so that even if Jouri Khan and Sarwar Khan are two different persons, Sarwar, the present, accused, might come under the category wagarah etc., whose name is not disclosed in the complaint petition, provided he is satisfactorily identified as the person named in the petition. The cognizance of the offence against the second petitioner (Sarwar) was properly taken under S. 190(a) and I overrule this contention of the learned vakil for the petitioner.

    9. The last contention of the learned vakil has been that the case should be transferred from the file of the Deputy Magistrate, Mr. S.N Sen, to some other Magistrate. The ground for this contention is that the Deputy Magistrate in the case of Lalu Khan, which was disposed of on 31st August 1917, disbelieved the evidence of the petitioner No. 1 Hayat Khan and therefore there will be no impartial trial by the same Magistrate of the present case against him. The trial in the case commenced, as I have said before, on 27th July when the witnesses for the prosecution were examined. The application to the Court was made on 4th October and to the first Court on 3rd September. The delay has been very inordinate and the petition for transfer is made after the prosecution case is almost over. It is said that the petitioners came to know of the opinion of the Magistrate as regards the defence when the judgment was delivered in the case of Lalu Khan on 31st August 1917.

    10. The opinion expressed by the Magistrate in the case of Lalu Khan as regards the defence of Hayat in itself is no ground for the transfer of the case. The most important question for the Magistrate in the present trial would be whether the petitioners did or did not assault Wajid and whether they were members of any unlawful assembly and committed not or not. The Magistrate will decide upon the evidence of the case. I do not think that the ground mentioned is sufficient for directing the transfer of the case particularly at so late a stage. I therefore overrule this contention also. The application of the petitioners is rejected.

    V.S/R.K

    11. Application rejected.

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    Comments

    Hayat Khan And Another v. Emperor Opposite Party.
    (Nov 15, 1917)