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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Bennet, J.
Acts
  • S. 218, Penal Code. Under Section 494
  • Section 4(o)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Bennet, J.
Acts
  • S. 218, Penal Code. Under Section 494
  • Section 4(o)
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is an application in criminal revision by Pt. Alopi Din, secretary of the District Board of Banda, challenging an order of the District Magistrate dated 5 September 1934 committing him for trial to the Court of Session. The commitment was made along with three other persons — Pt. Salig Ram (engineer of the District Board), Thakur Babu Singh (sub-overseer), and Suraj Prasad (contractor). The charges as described in the District Magistrate's order included Sections 120-B, 420 and 477(a) of the Penal Code in respect of all the accused; Section 218 of the Penal Code in respect of Alopi Din; and Section 218 read with Section 109 of the Penal Code in respect of the other three accused.

The prosecution arose from a complaint by B. Damodar Prasad, junior vice chairman of the District Board, and a police investigation followed. At the commencement of the prosecution, the prosecuting inspector informed the court that he intended to prosecute under Sections 420, 468 and 120-B of the Indian Penal Code and that, in his view, there was no case under Section 218; he stated that the procedure would therefore be that of a warrant case. The District Magistrate proceeded to try the matter as a warrant case. After statements, the trial court discharged Alopi Din but framed charges against the other three accused. The District Magistrate then revisited the matter under Section 437 of the Criminal Procedure Code, considered the evidence (in an order of 12 typed pages), concluded that the matter should be tried by the Court of Session, and committed all four accused for trial.

Pt. Alopi Din sought revision of that committal order. The court below (the revising court) heard arguments and refused the application, dismissing the revision and allowing the Court of Session to try the case.

Legal Issues Presented

  1. Whether the prosecuting inspector's statement at the opening that "there was no case under S. 218, Penal Code" constituted a withdrawal from prosecution under Section 494 of the Code of Criminal Procedure.
  2. Whether, in revision under Section 437 of the Code of Criminal Procedure, the revising court should itself go into the merits of the prosecution evidence and decide whether there is sufficient material for the accused to stand trial at the Court of Session.
  3. Whether Section 437 permits the District Magistrate or Sessions Judge to set aside an inferior court's discharge (including a discharge previously made by the trial court) where the Magistrate considers the offence to be one exclusively triable by the Court of Session.
  4. Whether the language of Section 437 requires that an accused must have been discharged specifically on a charge of an offence exclusively triable by the Court of Session before the revising court may act under that section.

Arguments of the Parties

Applicant's (Pt. Alopi Din) Arguments

  • It was argued that the prosecuting inspector's opening statement amounted to a withdrawal from prosecution under Section 494, and hence the accused should be discharged.
  • Learned counsel for the applicant contended that this Court in revision could and should examine the merits of the prosecution evidence and decide whether there was sufficient material for the accused to be committed to trial at the Court of Session.
  • It was argued (ground No. 5) that the District Magistrate could not set aside the trial court's order of discharge without upsetting the trial court's assessment of oral and documentary evidence and finding that assessment perverse.
  • Another argument (not contained in the memorandum of revision but pressed at hearing) was that Section 437 would only apply where there had been a discharge on a charge of an offence exclusively triable by the Court of Session; counsel relied on prior authorities to that effect.
  • Ground No. 7 argued that, on the District Magistrate's own finding about when the applicant joined the alleged conspiracy, there could be no charge against the applicant under Section 218.

Prosecution's Position (as reflected in the opening)

  • The prosecuting inspector stated in opening that he wished to prosecute under Sections 420, 468 and 120-B of the Penal Code and expressed the view that there was no case under Section 218; accordingly, he indicated the procedure would be that of a warrant case.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
1934 All 944 Referred to as a ruling under Section 436 of the Code of Criminal Procedure. The court noted the prior ruling but held that Section 437 differs in important particulars from Section 436 and therefore that ruling did not govern the present case.
1925 Pat 599 Reported to lay down that under Section 437 the Sessions Judge must consider whether it was open to the Magistrate to reach his conclusion and that a mere different view on the evidence would not justify commitment; the finding must be not only wrong but perverse. The court respectfully disagreed with that ruling and stated it could not accept that principle as applicable to the present case.
1 All 413 Referred to in support of the proposition that Section 437 applies only where the discharge was on a charge of an offence exclusively triable by the Court of Session. The court observed that in that case the offence in question was held not to be exclusively triable by the Court of Session; therefore the precedent did not assist counsel's proposition in the present case.
1919 Mad 45 Referred to for the same proposition as 1 All 413 — that the offence was not exclusively triable by the Court of Session. The court treated this authority similarly: it was inapplicable because, in the present case, Section 218 is an offence exclusively triable by the Court of Session.
1918 Cal 943 Referred to as a case where two Judges disagreed on the proposition that Section 437 required discharge on an offence exclusively triable by the Court of Session. The court noted the split decision and concluded that where two Judges differ on the point the case cannot be regarded as supporting the proposition relied on by counsel.

Court's Reasoning and Analysis

The court's reasoning proceeded in a sequence of legal analyses tied closely to the statutory provisions and the procedural posture of the case, as follows:

  1. On the alleged withdrawal by the prosecuting inspector: The court examined Section 494 of the Code of Criminal Procedure, under which a public prosecutor may "withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried." It also invoked the definition of "offence" in Section 4(o) of the Code. The court concluded that a withdrawal under Section 494 would entail the public prosecutor stating that he does not wish to prosecute for certain alleged acts or omissions. In the present case the prosecuting inspector merely expressed the opinion that the evidence would not show a case under Section 218; he did not make a statement that he did not desire prosecution for particular alleged acts. Consequently, the court found there was no withdrawal by the public prosecutor.
  2. The court distinguished withdrawals made at different stages: a withdrawal at the beginning of a case (under Section 494(a)) would amount to a discharge of the accused, while a withdrawal after a charge has been framed (under Section 494(b)) would produce the result of an acquittal. The court found the inspector's statement did not amount to a withdrawal in either sense.
  3. On the revisional jurisdiction and consideration of merits: The court explained that this was a committal under Section 437 of the Criminal Procedure Code. Although learned counsel urged the revisional court to examine the merits and decide sufficiency of the prosecution evidence, the court declined to do so in the present case on the ground that doing so would amount to usurping the role of the inquiring Magistrate and might prejudice the accused's right to a fair trial at the Court of Session. The court emphasized that such substitution would be unwise and could hamper a fair trial.
  4. On the proper function of a Magistrate under Section 437: The court analyzed Section 437 and contrasted it with Section 436. It held that Section 437 is mainly intended to address situations where an inferior Magistrate wrongly considers he has jurisdiction to try a case that is in fact exclusively triable by the Court of Session; where a Sessions Judge or District Magistrate considers that the facts alleged disclose an offence exclusively triable by the Court of Session and that the inferior court has improperly discharged an accused, Section 437 empowers committal. The court underscored that the function of a Magistrate conducting an inquiry into a case triable exclusively by the Sessions Court is to ascertain whether there is sufficient evidence to commit; the inquiry-Magistrate is not to weigh evidence as a trial Judge would nor to give the accused the benefit of the doubt in the same manner.
  5. On the interpretation of the language of Section 437 and precedent: The court interpreted the section's language as requiring that the case be triable exclusively by the Court of Session but rejecting the narrower construction that the accused must have been discharged specifically on such a charge. The court reviewed the authorities cited by counsel (including 1925 Pat 599, 1 All 413, 1919 Mad 45 and 1918 Cal 943) and explained why they were not determinative against the present committal: some held the offence was not exclusively triable by the Court of Session (and so were inapplicable), another case was split and therefore not supportive, and one ruling under Section 436 did not control because of differences between Sections 436 and 437.
  6. On the specific grounds raised (including ground No. 7): The court refused to reopen the merits (including questions of when the applicant joined an alleged conspiracy) because it had decided not to go into the prosecution evidence in revision. The court found no ground made out to interfere with the District Magistrate's order of committal.
  7. On fairness and the interest of both sides: The court stressed that both prosecution and defence are entitled to a fair trial and that permitting this revisional procedure to preempt trial at the Court of Session would be contrary to justice. Given that Section 218 is an offence exclusively triable by the Court of Session, the prosecution is entitled to have its case heard there.

Holding and Implications

Holding: The court refused the application in revision and dismissed the revision. Application dismissed.

Implications:

  • The immediate and direct effect of the decision is that the revisional application by Pt. Alopi Din is refused and the matter stands committed to the Court of Session for trial on the charges as framed by the District Magistrate.
  • The court declined to express any opinion on the merits of the prosecution evidence so as to avoid prejudicing a fair trial; accordingly, this decision does not decide the factual or substantive merits of the charges themselves.
  • The opinion does not elaborate broader precedent-setting implications beyond the statutory interpretation and procedural guidance contained in the reasoning above.

Disposition

Order: Application dismissed. (Signed in the opinion: K.S.)

Show full summary ...

    Alopi Din v. Emperor

    1. This is an application in criminal revision on behalf of one Pt. Alopi Din, secretary of the District Board of Banda, against an order of the District Magistrate, dated 5th. September 1934, committing him for trial to the Court of Session along with three other persons Pt. Salig Ram, engineer of the District Board, Thakur Babu Singh, sub-overseer, and Suraj Prasad, a contractor, under Ss. 120-B,. 420, 477(a), Penal Code, in the case of all the accused, and S. 218, Penal Code, in the case of Alopi Din and S. 218/109, Penal Code, in the case of the three other accused. There was a complaint by B. Damodar Prasad, junior vice chairman of the District Board, against these four accused persons and the police made an investigation into the complaint and the case was prosecuted. When the prosecution began the prosecuting inspector addressed the Court and the Court passed the following order:

    “Tbs Prosecuting Inspector in opening the case said that he wanted to prosecute all the accused under Ss. 420, 468 and 120-B, I.P.C, and that there was no case under S. 218, I.P.C The procedure will therefore be that of a warrant case.”

    2. One of the points in revision is that this order shows that there was a withdrawal by the prosecuting inspector from the offence of S. 218, Penal Code. Under Section 494 of the Cr PC, a public prosecutor may:

    “withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried.”

    3. The claim is that there was a withdrawal. The word “offence” is defined in Section 4(o) of the Cr PC, as meaning

    “Any act or omission made punishable by any law for the time being in force.”

    4. Therefore a withdrawal by a public prosecutor is withdrawal from the prosecution of any person for any act or omission made punishable by any law; that is, the Public Prosecutor states that he does not want to prosecute for certain alleged acts or omissions. In the present case there was no such statement by the prosecuting inspector. He merely stated that there was no case under S. 218, Penal Code. He did not state that there were any acts or omissions for which he did not sesire prosecution of the accused. He only gave his opinion that the evidence produced for the prosecution would not show a case under S. 218, Penal Code. I consider therefore that there was no withdrawal by the Public Prosecutor in this case. It is further clear that a withdrawal at the beginning of a case must come under Section 494(a) of the Cr PC, and would only amount to a discharge of the accused and it would not come under sub-S. (b) a withdrawal after a charge has been framed, which produces the result of an acquittal.

    5. The Magistrate proceeded to try the case as a warrant case and after the statements of accused he discharged Alopi Din, the secretary, and framed charges against the other three accused. The District Magistrate has taken up the case against Alopi Din; under the provisions of Section 437 of the Cr PC, and he has considered the evidence in an order extending to 12 typed pages and he has come to the conclusion that Alopi Din and the other accused, should be tried by the Court of Session and he has committed them for trial to the Court of Session and has framed charges. Learned counsel addressed me at considerable length on the merits of the case and he argued that this Court in revision could hear the case on its merits and decide whether there was sufficient material for these persons to stand their trial at the Court of Session or whether there was not. A great deal of evidence has been given in this case for the prosecution extending over 159 pages of the record. This is a case of committal under Section 437 of the Cr PC, to the Court of Session. I do not think it necessary to decide whether it is open to this Court in such a case to go into the evidence for the prosecution and to come to a decision in the manner suggested but I consider that it would be very unwise to do so in the present case because that would amount to taking the place of the inquiring Magistrate. If I came to a decision contrary to the accused on the merits of the case and expressed such a decision in this order it would prejudice the fair trial of the-accused at the Court of Session.

    6. For these reasons I consider that in the present case it is undesirable that I should express any opinion on the merits of the prosecution evidence against Alopi Din. Learned counsel argued that it was not competent to the District Magistrate to set aside the order of discharge passed by the trial Court without upsetting its estimate of the oral and documentary evidence adduced in the case and holding that the same was perverse. This is ground No. 5 of the application. To support this proposition learned counsel referred to a ruling of mine in 1934 All 944 (1). That was a ruling under Section 436 of the Cr PC. I consider however that Section 437 of the Cr PC, differs in important particulars from Section 436 of the Cr PC. In my opinion Section 437 of the Cr PC, is mainly intended to meet the case where a Magistrate wrongly considers that he has jurisdiction to try a certain case and proceeds to try that case; and where the Sessions Judge or the District, Magistrate considers that the facts alleged show a case triable exclusively by the Court of Session and that the inferior Court has improperly discharged an accused person. In the present case the District Magistrate considers that S. 218, Penal Code, an offence exclusively triable by the Court of Session, is an offence shown by the facts alleged and therefore the District Magistrate considers that the inferior Court wrongly tried the case.

    7. The function of a Magistrate trying a case is different from the function of a Magistrate inquiring into a case exclusively triable by the Court of exclusively triable by the Court on Session. It is not for a Magistrate making an inquiry into a case triable exclusively by the Court of Session to weigh I the evidence or to give the accused the benefit of the doubt. As this Court has frequently laid down the duty of the Magistrate in such circumstances is to see whether there is sufficient evidence to commit to the Court of Session, and if he finds that there is sufficient evidence then he should commit the case to the Court of Session. Learned counsel relied on certain rulings which in my opinion do not apply to the present case. One ruling 1925 Pat 599 (2), does lay down that under Section 437 of the Cr PC, the Sessions Judge has to consider whether it was open to the Magistrate to come to the conclusion to which he did come on the materials before him. That a different view could be taken on the evidence would not justify the Sessions Judge in ordering commitment. He must come to the conclusion that the finding of the Magistrate is not only wrong but perverse. I do not consider that ruling is one with which I can agree and I must respectfully differ. Learned counsel then argued a ground Which is not contained in his memorandum of revision which was that for Section 437 of the Cr PC to apply there must be an order of discharge on a charge of a section exclusively triable by the Court of Session. For this proposition he referred first of all to 1 All 413 (3), and to 1919 Mad 45 (4). In both those cases the Courts decided that the offence with which the District Magistrate or Sessions Judge desired to charge the accused under the section which corresponded to Section 437 of the Cr PC, was not an offence exclusively triable by the Court of Session.

    8. The language of the section requires that the offence should be exclusively triable by the Court of Session. Therefore the Courts held that the order was not justified under the section in question.

    9. That however will not apply to the present case because S. 218 is exclusively triable by the Court of Session. Learned counsel then referred to 1918 Cal 943 (5). One of the two Judges did enunciate the proposition laid down by counsel, but the other Judge differed. I do not think therefore that a ruling in which two Judges differ on this point can be held to support the point. No authority therefore has been shown to support the proposition. It appears to me that the proposition as enunciated by counsel is not in accordance with the language of the section. The language of the section requires that the case should be triable exclusively by the Court of Session, but it does not go on to state that an accused person has been improperly discharged on such a charge. On the contrary the section merely says that it requires that an accused person has been improperly discharged by the inferior Court. These words are general and cover a discharge on any kind of charge and not merely a discharge on a charge of an offence exclusively triable by the Court of Session. Argument was also made on ground No. 7 which states that on the finding that the applicant must have joined the conspiracy at least about the time that the civil suit was brought there could be no charge against the applicant under S. 218, Penal Code.

    10. This argument reopens the question of the merits of the case into which I have said that I do not intend to go. No ground has been shown for interference with the order of the District Magistrate. It appears to me that both the prosecution and the defence are entitled to ask that there should be a fair trial. The District Magistrate has committed this case to the Court of Session for a fair trial. The present applicant in revision appears to consider that by coming to this Court a fair trial can be prevented and that this Court should consider the merits of the case in revision and give orders that the trial should not take place. I do not consider that such a procedure by this Court would be in accordance with justice. The prosecution is entitled to have its case fairly-heard under S. 218, Penal Code, which is a section exclusively triable by the Court of Session. Accordingly it appears to me that the correct order is to dismiss this application and allow the Court of Session to try the case. I accordingly refuse this application.

    K.S

    11. Application dismissed.

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    Comments

    Alopi Din v. Emperor
    (Dec 10, 1934)