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  • Rowland, J.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner is an accused person prosecuted under Section 193 read with Section 116, Indian Penal Code — that is, accused of abetment of an offence which was not in fact committed. The allegation is that during the pendency of commitment proceedings arising from a dacoity at Rudauli the petitioner, acting as pleader for some accused, instigated two persons (Sitaram Halwai and Ragho Dhanuk) to give false evidence during identification proceedings before the Sub-divisional Officer (SDO).

Events described in the record include: a test identification in September 1935; multiple petitions by the petitioner and other accused between early and mid-September 1935 alleging police tutoring and intimidation of witnesses; an affidavit sworn by prosecution witness Sitaram Halwai on 27 November 1935 alleging that he had been asked by the petitioner not to identify and to make wrong identifications (naming Ragho Dhanuk as present); commitment proceedings concluding on 2 December 1935 (16 accused, of whom 10 were committed to sessions and 6 discharged); trial resulting in convictions by the Assistant Sessions Judge on 12 March 1936; and an appeal disposed of by the High Court in June 1936.

The record was received back by the Sub-divisional Officer on 30 June 1936, and the SDO filed the present complaint on 27 August 1936. The petitioner challenged the complaint by raising contentions about its truth, the SDO's motive, procedural irregularities (including alleged failure to hold a preliminary inquiry and lack of definite findings), the propriety of SDO as complainant rather than the Assistant Sessions Judge, and the desirability of trying the alleged offence in the interests of justice. This opinion arises on an application in revision challenging the proceedings (including a stay order which the court ultimately vacated).

Legal Issues Presented

  1. Whether the Sub-divisional Officer had jurisdiction to file the complaint under Section 476 (presumably referring to the Code of Criminal Procedure provisions in force in the facts) arising out of alleged conduct during commitment proceedings.
  2. Whether a preliminary inquiry (and notice to accused) was required before a complaint could be filed under the relevant provision.
  3. Whether the complaint and/or the order-sheet accompanying it sufficiently recorded the SDO's opinion that a prosecution was "expedient in the interests of justice" (i.e., whether express findings were required).
  4. Whether the delay between return of the record (30 June 1936) and filing of the complaint (27 August 1936) bore a sinister motive (for example, as pressure related to other proceedings involving the SDO), and whether that delay invalidated the complaint.
  5. Whether the Assistant Sessions Judge, rather than the Sub-divisional Officer, would have been the proper person to present the complaint.

Arguments of the Parties

Petitioner's Arguments (as presented by Mr. Manohar Lal)

  • The case against the petitioner is false; the allegations of subornation of evidence were untrue.
  • The Sub-divisional Officer was motivated by personal animus against the petitioner (including earlier incidents involving a client, Rameshwar Das, and a threatened civil suit), and thus his complaint was driven by personal bias.
  • The proceedings were defective for want of a preliminary inquiry before directing a complaint and because the accused were not given notice and opportunity to show cause against prosecution.
  • The complaint and the proceedings were defective for lack of definite findings by the Sub-divisional Officer and by the Sessions Judge on appeal that a prosecution was expedient in the interests of justice.
  • If a complaint were to be filed, the proper person to present it would have been the Assistant Sessions Judge who held the trial, not the Sub-divisional Officer who held the commitment proceedings.
  • The order-sheet produced after the Sessions Judge's inquiry was suggested to be fabricated by the Sub-divisional Officer to fill a lacuna in the complaint (i.e., the petitioner suggested the order-sheet was not genuine).

Respondent / Prosecution (recorded actions and limited responses)

  • The Public Prosecutor produced the order-sheet dated 27 August 1936 in response to the Sessions Judge's query about the absence of an expressed finding in the complaint.
  • Beyond production of that order-sheet (a public document), the opinion does not set out an extended, point-by-point narrative of the prosecution's legal submissions in reply to the petitioner's challenges.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
55 Cal 13121 Illustrates that, where courts of fact do not express a definite and unequivocal opinion on whether a prosecution is expedient in the interests of justice, the High Court may be obliged to examine the facts itself and form its own opinion. The court invoked this authority to stress the desirability of lower courts expressing explicit findings on the expediency of prosecution. It observed that although neither the complaint nor the order-sheet contained an express statement, by implication the SDO's documents and the order-sheet indicated he considered prosecution expedient; the court nonetheless lamented the lack of express findings and proceeded to consider the facts and the desirability of trial.

Court's Reasoning and Analysis

The court proceeded through a sequence of factual and legal assessments, staying within the material placed before it:

  1. Jurisdiction: The court held that the Sub-divisional Officer had jurisdiction to make the complaint because the alleged attempt to suborn evidence occurred during the commitment inquiry and was connected to the commitment proceedings (para 6).
  2. Delay: The court examined the delay between return of the record (30 June 1936) and filing of the complaint (27 August 1936). The petitioner suggested the delay was to avoid earlier filing while the SDO faced other proceedings against himself; the court found no sinister significance in the delay and rejected attaching impropriety to it on the evidence before the court (para 4–5).
  3. Preliminary inquiry and notice: The court observed that the wording of Section 476 does not make it incumbent on the court to hold any preliminary inquiry or to give the accused notice and opportunity to show cause. If an inquiry is held, the nature, method and extent are matters for the court's discretion (para 6–7).
  4. Sufficiency of findings: The petitioner contended that there was no finding by the SDO or the Sessions Judge that a prosecution was expedient in the interests of justice. The complaint did not contain an express opinion to that effect. The Sessions Judge asked the Public Prosecutor to produce the SDO's order-sheet; it was produced two days later. The petitioner alleged fabrication of that order-sheet, but the court treated that as a grave accusation requiring evidence; the court emphasized the presumption of genuineness of public documents and declined to reject the order-sheet on mere suggestion (para 6–7).
  5. Content of the order-sheet and complaint: The order-sheet recorded that the Assistant Sessions Judge had said inquiry into the pleader's conduct was desirable for purity of administration of justice, and that the SDO considered further preliminary inquiry unnecessary, found a prima facie case from the other facts disclosed, and directed a complaint. Although neither document contained an express statement in the precise words "prosecution is expedient," the court concluded that by implication the SDO's opinion that prosecution was expedient was sufficiently clear (para 7–8).
  6. Merits and desirability of trial: The court analyzed the nature of the allegation — a serious charge of attempting to scandalise justice by suborning false evidence — and noted there was direct evidence supporting the allegation (the affidavit of Sitaram and the statement by Ragho). Given the gravity of the charge and the presence of direct evidence, the court considered it highly desirable that the questions be tried and judicially determined on evidence. The court balanced the competing public interests: if the allegations were true the petitioner should not go unpunished; if false, the petitioner should not have a continuing stigma. On that basis the court concluded that a trial was expedient in the interests of justice (para 8).
  7. Rejection of extreme criticisms: The court refused to accept the petitioner's contentions (including the suggestion of fabrication and that the SDO lacked jurisdiction or that an express preliminary finding was mandatory) on the basis of the record before it; it required actual evidence to substantiate allegations of fabrication or mala fides rather than mere suggestion (para 7–8).
  8. Disposition: Concluding that the prosecution should proceed, the court dismissed the application in revision and vacated the stay that had been granted (para 8–9).

Holding and Implications

Holding:

Application dismissed; the stay order vacated.

Implications:

  • The direct, immediate effect is that the prosecution of the petitioner on the charge of abetment of giving false evidence is to proceed to trial; the stay previously in place is removed.
  • The court found that the Sub-divisional Officer had jurisdiction to present the complaint arising out of commitment proceedings and that the absence of an express, formulaic finding that prosecution was "expedient in the interests of justice" in the complaint or order-sheet did not, on the materials before the court, invalidate the complaint where the order-sheet and surrounding facts showed by implication that the SDO considered prosecution appropriate.
  • The opinion emphasizes the desirability for courts of fact to state unequivocally whether prosecution is expedient so that higher courts are not required to re-examine the facts; however, the opinion does not purport to lay down a new legal principle beyond the application of the existing practice to the facts of this case. The opinion does not record the creation of any novel precedent; it resolves the petition on the factual and documentary record before the court.
B.D/R.K

Order: Application dismissed.

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    Nand Kumar Sinha v. Emperor

    1. The petitioner is an accused person who is being prosecuted for an alleged offence under S. 193 read with S. 116, I.P.C, that is to say for abetment of an offence which was not in fact committed. The allegation is that during the pendency of commitment proceedings arising out of a dacoity at Rudauli, he instigated two persons, Sitaram Halwai and Ragho Dhanuk, to give false evidence before the Sub-divisional Officer in connexion with the identification of the accused persons for whom the present petitioner was acting as pleader. The contentions of the petitioner are that the case against him is false. It is suggested that the Sub-divisional officer who made the complaint under S. 476 was moved by personal animus against the petitioner, that the proceedings were bad for want of preliminary inquiry before directing a complaint, that it is not desirable in the interest of justice that the alleged offence should be tried out, that the proceedings are bad for want of definite findings by the Sub-divisional Officer and by the Sessions Judge on appeal, that a prosecution was required in the interest of justice. Mr. Manohar Lal also suggested that if a complaint was to be filed, the proper person to present it was not the Sub-divisional Officer who held the commitment proceedings but the Assistant Sessions Judge who held the trial.

    2. Mr. Manohar Lal for the petitioner has presented to me an historical review of the facts on which the suggestions against the Sub-divisional Officer are based. It is said that the dacoity took place on 26th July 1935. A test identification was held in September 1935 before a Sub-deputy Magistrate. The petitioner who acted for some of the accused as pleader presented a petition to the Sub-deputy Magistrate who held the test identification making certain allegations against the Sub-Inspector, Rampirit Pande, and suggesting that he was tutoring witnesses as to the identification. The Sub-deputy Magistrate referred the matter to the Sub-divisional Magistrate to whom on 6th September 1935 the petitioner presented another petition on behalf of the accused with similar allegations. Other suspects presented another similar petition on 9th September 1935, alleging that by intimidation and coercion the police are fabricating evidence. Other accused persons presented a similar petition on 17th September and two accused persons, Kamli Singh and Ramji Potdar, presented affidavits on 18th September 1935, in support of the above allegations. Another accused, Jadunandan Rai, filed a regular complaint on 20th September 1935, alleging that on 22nd August 1935 he had been assaulted by the Sub-Inspector in order to extort a confession. Again, after submission of the charge-sheet on 4th November 1935, the petitioner, on behalf of the accused persons, presented a petition that a test identification by all the witnesses might be held at one time as the Sub-Inspector was trying to get witnesses tutored to make false identifications.

    3. There is no material before me to judge whether any of these allegations were made in good faith or were not. On 27th November 1935, one of the prosecution witnesses, Sitaram Halwai, swore an affidavit before the Sub-divisional Officer of Beguserai that he had been called through Biso Singh to the petitioner at the latter's shoe, shop and had been asked by the petitioner not to identify and to make wrong identifications and to say that he had been beaten by the Sub-Inspector. Ragho Dhanuk is named in this affidavit as having been present with Sitaram Halwai. No immediate action was taken by the Sub-divisional Officer on this affidavit. Ragho Dhanuk in the course of his examination in the commitment proceedings made a similar statement. On 2nd December 1935, the commitment proceedings in the Court of the Committing Magistrate ended. Of the 16 accused, 10 were committed to sessions and 6 were discharged. The trial ended on 12th March 1936 in the conviction of the accused by the Assistant Sessions Judge. An appeal to the High Court was disposed of in June 1936.

    4. The record, it is said, was received back by the Sub-divisional Officer on 30th June 1936, but it was not till 27th August 1936 that he filed the present complaint. It is suggested that the delay was due to the pendency of certain other proceedings in which the Sub-divisional Officer was directly involved. There had been in May 1935 a proceeding under S. 144 in which one Rameshwar Das was concerned. It is said that the Sub-divisional Officer made certain observations in open Court reflecting on the personal character of Rameshwar Das, a client of the petitioner. Rameshwar Das gave notice under Section 80 of the CPC, of his intention to bring a civil suit against the Sub-divisional Officer claiming damages for the defamatory language used, that at an administrative inquiry held by the Collector into the matter the petitioner gave evidence for Rameshwar Das and the latter filed his suit on 6th August 1936. It was however withdrawn on 7th August 1936.

    5. It is suggested that the delay in filing the complaint on 27th August 1936 was due to the Sub-divisional Officer not during to present it earlier because of the proceedings against himself. As to this I have no doubt that if the complaint had been presented immediately on return of the record from the High Court, the petitioner would have contended that it had been done in order to put pressure on himself to stifle the suit brought by Rameshwar Das. I am unable to attach any sinister significance to the delay in presenting the complaint. As for the previous history, it is capable of two interpretations: one may be that the petitioner has throughout been conducting a campaign against the police officers and Sub-divisional Officer who were doing their duty. Nothing has been placed before me to show that there was any substance in the allegations contained in the successive petitions filed in September 1935 challenging the bona fides of the test identifications. The fact that Sitaram's first allegation was made in the form of an affidavit and that Sitaram in his evidence in chief in the dacoity case did not refer to that incident is suggested to be an indication that the incident is not true. That is a matter going to the truth or falsity of the charge against the petitioner and it would be out of place for me to express any opinion in the present proceedings in revision as to whether there is another explanation less favourable to the petitioner. I shall turn now from matters which may have been introduced in order to create prejudice to the objections affecting the merits of the order under revision.

    6. As to the first objection that the proper Court to complain was that of the Assistant Sessions Judge, there was an observation in the judgment of that officer dated 12th March 1936 that “it is desirable in the interest of the purity of administration of justice that the allegations be enquired into”. The allegations referred to are that the petitioner attempted to suborn evidence. But the alleged attempt was during the commitment inquiry and was with reference to the commitment proceedings.

    7. The Sub-divisional Officer therefore had jurisdiction to make the complaint. Then it is said that he ought to have held a preliminary inquiry and that the accused should have had notice and opportunity to show cause against his prosecution. The wording of S. 476 does not make it incumbent on the Court to hold any preliminary inquiry or to give accused notice and if an inquiry is held, its nature, method and extent are entirely within the discretion of the Court. I come? to the argument that the proceedings are-bad because there is no finding by the Sub-divisional Officer or the Sessions Judge that an inquiry is expedient in the interests of justice. The complaint itself does not contain an expression of the Sub-divisional Officer's opinion that inquiry into the alleged offence was desirable. This was pointed out to the Sessions Judge on appeal and he gave the Public Prosecutor an opportunity of obtaining the order-sheet of the Sub-divisional Officer. Two days later the Public Prosecutor produced the order-sheet dated 27th August 1936. This order-sheet the petitioner suggests is not genuine but was fabricated by the Sub-divisional Officer in order to fill up the lacuna in his complaint. Such a suggestion was made before the Sessions Judge in appeal. It is a during and scandalous suggestion. The order sheet is a public document being the record of an act of a public judicial officer and the presumption is that it is genuine. I would require evidence and not mere suggestion to justify its rejection.

    8. I may point out that if the order-sheet was a document fabricated by the Sub-divisional Officer between the 14th and 16th October in order to fill a gap in the contents of its complaint, it is surprising, that the order-sheet itself should not contain a finding in express terms that prosecution was expedient in the interests of justice. The Sub-divisional Officer has noted in the order-sheet that the Assistant Sessions Judge directed inquiry into the conduct of the pleader for purity of the administration of justice and expressed his own opinion that any further preliminary inquiry would not be expedient. He said that the other facts disclosed a prima facie case and directed a complaint to be filed. The order-sheet (and the complaint too) make it sufficiently clear by implication that the Sub-divisional Officer was in fact of opinion that a prosecution was expedient, and it is a pity that in neither of these documents has he expressly stated this. In the Sessions Judge's judgment also I look in vain for a definite finding that a prosecution is desirable. It is certainly desirable that Courts of fact should express themselves definitely and unequivocally on the question whether it is expedient in the interest of justice that an inquiry should be made; otherwise as in 55 Cal 13121 the High Court may have to look into the facts for itself and form its own opinion as to whether a prosecution is desirable or not. In the present case the allegation is one of a flagrant attempt to scandalise justice by suborning false evidence. There is direct evidence in support of it and it seems to me in the highest degree desirable that the questions at issue be tried out and judicially determined on evidence. If it be proved that the allegations against the petitioner are true, it is certainly undesirable that he should go unpunished. If they are false it is equally undesirable that a stigma of suspicion should attach to his character. I have therefore no doubt that it is expedient in the interest of the administration of justice that the trial of the petitioner should proceed. The application is dismissed and the stay order vacated.

    B.D/R.K

    9. Application dismissed.

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    Comments

    Nand Kumar Sinha v. Emperor
    (Dec 8, 1936)