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Jugeshwar Singh And Others v. Emperor Opposite Party.
Concise Analytical Summary of the Opinion (Bench: Rowland, J. and Dhavle, J.)
Factual and Procedural Background
The case concerns convictions arising from an unregistered usufructuary mortgage deed that was produced in defence in a criminal trial under Section 447, I.P.C., where possession of a plot of land was contested. The mortgage deed purported to hypothecate the plot in favour of Jageshwar Singh and Jagdeo Singh; the document bore the attesting signature of Jugal Lal and purported to be written by Parmeshwar Lal but was found to be a forgery.
During the earlier trial, the Honorary Magistrate Khan Sahib Syed Muhammad Islam issued notices under Section 476, CrPC calling on Jageshwar, Jagdeo, Jugal (and others named on the document) to show cause why they should not be prosecuted for offences related to the forged document. The Magistrate complained against Jageshwar, Jagdeo and Jugal Lal under various sections including Ss. 471, 467, 193 and read with S. 120 (intended as S. 120-B). He declined to complain against the actual scribe Raghubar Dayal and another attesting witness Bikhari Lal.
Shamdeo (the complainant in the S. 447 case) appealed to the District Magistrate, who found prima facie case also against Raghubar Dayal and Bikhari Lal and, under Section 476-B, CrPC, complained against them under S. 467 and S. 467 read with S. 120-B, directing that they be proceeded against in the same case. Proceedings went to the Sessions Judge who found the document forged based on possession evidence, rent receipts, khatian possession, proceedings under Ben. Ten. Act, absence of document in written statements, stamp-paper irregularities, and handwriting expert evidence. The appellants were convicted under substantive forgery/user offences and also under S. 120-B; the Sessions Judge imposed sentences (5 years for Raghubar Dayal; 3 years for Jugal and Jageshwar; 2 years for Jagdeo). Appeals challenged, in particular, the regularity of initiation of prosecution and the framing/conviction under S. 120-B.
Legal Issues Presented
- Whether the initiation of prosecution was irregular or barred because the Honorary Magistrate who issued the initial complaint under Section 476 was, at a relevant time, without magisterial powers (i.e., whether Section 195, CrPC, prevented proceeding).
- Whether a complaint by a Court (or an endorsement by the District Magistrate under Section 476-B) permits cognizance and continued prosecution of all persons implicated by the evidence, notwithstanding any interim defect in the Magistrate's magisterial authority.
- Whether convictions under Section 120-B, I.P.C. (criminal conspiracy) were properly maintainable in addition to convictions on substantive offences of forgery and related offences, or whether the conspiracy conviction was unnecessary/improper because the alleged conspiracy produced substantive offences that amount to abetment under S. 107 and related provisions.
- Whether the sentences imposed by the Sessions Judge were excessive.
Arguments of the Parties
Appellants' Arguments
- The initiation of prosecution was irregular because the Honorary Magistrate (Mr. Islam) who made the Section 476 complaint had ceased to hold magisterial powers during an intervening period and thus was not a competent Court to make such a complaint at the time he acted.
- Their challenge targeted the regularity of initiating proceedings and the framing of an additional charge under S. 120-B; they argued there was insufficient sanction to institute prosecution under S. 120-B and that it was improper to convict under that section in addition to substantive offences.
Respondent / Prosecution / Court's Position
- The Sessions Judge considered the evidence of forgery compelling (possession, rent receipts, khatian, Ben. Ten. Act proceedings, non-inclusion in written statements, stamp irregularities, handwriting evidence). Accordingly, the substantive convictions were justified.
- The objection to initiation could and should have been raised earlier (before District Magistrate or Sessions Judge); the delay and failure to object meant the accused cannot now challenge initiation under Section 195 or related procedural irregularities.
- Where a Court has made a complaint (as occurred when the District Magistrate, under Section 476-B, endorsed the earlier complaint and complained against the other two persons), cognizance may proceed against all persons whom the evidence shows to be concerned; Section 195 does not bar such prosecution in that factual posture.
- The charge under S. 120-B was unnecessary because the alleged conspiracy resulted in substantive offences and therefore amounted to abetment; accordingly, convictions under S. 120-B should be set aside though the substantive convictions should stand.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 1929 Cal 203 | Supports the view that once a commitment has been made it may be too late to raise objections to initiation of proceedings which should have been taken earlier. | The Sessions Judge's view that the appellants should have objected earlier was supported by this decision; the opinion refers to it as authority for treating late objections to initiation as untimely. |
| 1932 Cal 545 | Followed the 1929 Cal decision on the same point regarding timeliness of objections to initiation/commitment. | The decision is cited as following 1929 Cal 203, reinforcing the Sessions Judge's position about the necessity of raising such objections at an earlier stage. |
| 15 PLT 438 | Holds that when a Court has complained of an offence specified in Section 195, CrPC, cognizance can be taken of the whole case and prosecution can proceed as to all persons concerned and under applicable sections. | The Court relied on this precedent to support the proposition that a complaint by a Court allows prosecution to proceed against all persons implicated by the evidence, even where some persons were not named in the original complaint. |
| 15 PLT 694 | Similar holding to 15 PLT 438 regarding the effect of a Court's complaint on taking cognizance of offences and proceeding against all implicated persons. | Used alongside 15 PLT 438 to justify that Section 195 did not bar conviction of those subsequently shown by evidence to be concerned in the offence once a Court had complained. |
Court's Reasoning and Analysis
The Court's analysis proceeded in two main strands: (A) the validity of initiation of proceedings, and (B) the propriety of convictions under S. 120-B.
(A) Initiation of Proceedings
- The Sessions Judge found the document to be forged on several evidentiary grounds: possession by the opposite party (Shamdeo), production of rent receipts, possession of the original raiyati khatian by Shamdeo, proceedings taken under Section 40 of the Benami Tenancy Act, absence of mention of the document in written statements of Jageshwar and Jagdeo in the S. 447 case, stamp-paper irregularity (4 annas instead of 8 annas and purchase date later than alleged document date), handwriting expert and other handwriting evidence, and unsuccessful explanations by appellants.
- Appellants argued the Honorary Magistrate (Mr. Islam) lacked magisterial powers at the time he made his complaint under Section 476, and therefore initiation was defective under Section 195, CrPC. The Sessions Judge considered that, because the appellants did not object at an earlier stage (they did not appeal the Magistrate's order or the District Magistrate's complaint), it was too late to raise that objection on appeal. The Sessions Judge's view was supported by Calcutta High Court decisions (1929 Cal 203; 1932 Cal 545) which the opinion cites for the proposition that objections to initiation should be taken earlier.
- The Court further observed that where a Court has made a complaint under Section 195, the inquiry can proceed against all persons shown by evidence to be concerned; the Court relied on earlier decisions of the same Court (15 PLT 438 and 15 PLT 694) to hold that a complaint by a Court permits cognizance and prosecution against all implicated persons and applicable sections.
- Dhavle, J. emphasized the peculiar facts: Mr. Islam had begun preliminary proceedings while empowered, adjourned them at the request of the accused, and later completed them after his magisterial powers had lapsed; the District Magistrate subsequently, under Section 476-B, formally complained against the remaining two accused and endorsed the earlier complaint. Given this sequence, and the procedural history, the Court concluded that Section 195 did not bar conviction and that the objection was raised too late under Section 537 of the Code.
(B) Conviction under Section 120-B, I.P.C.
- The Court examined the scope of S. 120-B in relation to S. 120-A and S. 107 (abetment). It explained that S. 120-B was intended to punish certain criminal conspiracies where no express provision for such conspiracy exists in the Code, particularly where no overt act in pursuance of a conspiracy had been done (so abetment provisions would not apply).
- Where a conspiracy produces acts amounting to substantive offences, that conspiracy may constitute abetment under S. 107 and be punishable under the relevant abetment provisions (Ss. 109/114 etc.). In such cases, invocation of S. 120-B is unnecessary because the Code already provides specific provisions for punishment.
- In the present case, the alleged conspiracy produced substantive offences (forgery and its user). Therefore the conspiracy amounted to abetment and the Court concluded the Sessions Judge should not have framed separate charges under S. 120-B or convicted under that section in addition to the substantive offences. Both judges found the S. 120-B convictions unnecessary and set them aside.
- The Court also observed that the framing of S. 120-B was not decisive of the merits, that no separate sentence was imposed under S. 120-B, and that the substantive convictions and sentences were sustained because they were supported by evidence and were not excessive.
Holding and Implications
Holding: The Court reached the following dispositive conclusions:
- Convictions under the substantive offences (forgery and related offences) as recorded by the Sessions Judge are confirmed and the sentences imposed (5 years on Raghubar Dayal; 3 years on Jugal and Jageshwar; 2 years on Jagdeo) are not disturbed.
- Convictions under Section 120-B, I.P.C. (criminal conspiracy) are set aside because the alleged conspiracy resulted in substantive offences that amount to abetment and therefore did not require or justify separate convictions under S. 120-B.
- Final Disposition: The appeal is dismissed (i.e., the convictions and sentences on substantive counts are upheld, while convictions under S. 120-B are annulled).
Implications:
- Direct effect on the parties: The appellants remain convicted and sentenced on the substantive offences established by the Sessions Judge; their convictions under S. 120-B are reversed, and no separate sentence was imposed under S. 120-B in any event.
- Broader legal implications: The opinion explains and applies statutory distinctions between criminal conspiracy provisions (S. 120-A/120-B) and abetment provisions (S. 107 and related sections), and it clarifies that where a conspiracy produces substantive offences amounting to abetment, separate conviction under S. 120-B is unnecessary. The opinion does not purport to establish a novel legal principle beyond this statutory application; it primarily applies existing doctrine to the facts at hand.
End of summary.
Rowland, J.:— The appellants have been convicted by the Sessions Judge of Gaya of offences committed in connection with an unregistered usufructuary mortgage deed which was used by the defence in a criminal case in which Jageshwar Singh and Jagdeo Singh were accused under S. 447, I.P.C Possession of a plot of land was in issue and the document purported to create a hypothecation of this plot in favour of Jageshwar and Jagdeo. Jugal Lal's signature appeared on it as an attesting witness and it purported to be scribed by Parmeshwar Lal of Misirbigha. The document was found to be a forgery. The Honorary Magistrate Khan Sahib Syed Muhammad Islam, who disposed of the case, called on Jageshwar, Jagdeo and Jugal to show cause against their prosecution. It was alleged that the document was not written by Parmeshwar Lal but by Raghubar Dayal. He was also called on to show cause against prosecution. So was Bikhari Lal, another person whose name appeared on the margin as an attesting witness. The Honorary Magistrate purporting to act under S. 476, I.P.C, complained against Jageshwar, Jagdeo and Jugal Lal, the first two under Ss. 471 and 467 read with S. 120 and the third under Ss. 193 and 467 read with S. 120, I.P.C His view was that the forged document came into being as a result of conspiracy and the complaint appears to have been intended to refer to S. 120-B, I.P.C He declined to prefer a complaint against Raghubar Dayal and Bikhari Lal.
2. Against this order Shamdeo, the complainant of S. 447 case, preferred an appeal to the District Magisbrate, who after reviewing the facts, found that there was a prima facie case against Raghubar Dayal and Bikhari also, and under Section 476-B of the Cr PC, he complained against these two persons under S. 467 and S. 467 read with S. 120-B, I.P.C He directed these two accused to be proceeded against in the same case as the other three persons already being prosecuted. The Sessions Judge found that the document was forged, basing his judgment on possession of the land by the opposite party, Shamdeo Singh; on the production of rent receipts by Shamdeo; on the fact that the original raiyati khatian was in possession of Shamdeo; on the fact that proceedings have been taken by Shamdeo under Section 40 of the Ben. Ten. Act; on the absence of mention of this document in the written statement of Jageshwar and Jagdeo in the S. 447 case; on the fact that the stamp paper was of insufficient value being on 4 annas stamp instead of 8 annas; on the fact that the purchase of the stamp paper as endorsed thereon was later than the date of the alleged document; and on the evidence of the handwriting expert and other persons as to handwriting. The explanations offered for the appellants entirely failed to displace the reasoning of the Sessions Judge which is fully supported by the evidence, and the argument in the appeal has been directed mainly to an attack on the regularity of the initiation of the proceedings. The order of Khan Sahib Syed Muhammad Islam for the prosecution of the first three accused was dated 7th February, 1934, and his complaint was presented on 16th February. At that time he was not exercising the powers of a Magistrate. He had been vested with such powers by Notification No. 258 dated 27th September, 1930, for a period of three years expiring on 26th September, 1933. He was again vested with magisterial powers on 18th July, 1934, and it is argued that in the interval he was not a Court capable of initiating proceedings under S. 476. The Sessions Judge thought that once a commitment had been made it was too late for the accused to take an objection against the initiation of the proceedings which they ought to have taken at an earlier stage. They had not appealed to the District Magistrate against the order purporting to be made under S. 476 directing their prosecution, nor to the Sessions Judge against the order of the District Magistrate under S. 476-B. The Sessions Judge's view is supported by the decision of the Calcutta High Court in 1929 Cal 203(1). The decision is followed by the same Court in 1932 Cal 545(2). The intention of the legislature appears to be to prevent innocent persons being put on trial at the instance of persons likely to be moved by motives of revenge and not protect guilty persons from the penalty of their crimes. There is another answer available to the prosecution and that is that the Sub-divisional Magistrate, before whom the case against all these appellants was inquired into, had before him the complaint of the District Magistrate under S. 476-B against two of the persons who were put on trial. What S. 195 prohibits is taking cognizance of an offence of a certain class except on a complaint of a Court; but where a Court has complained of an offence specified in this section then cognizance can be and is to be taken of the whole case, that is to say prosecution will go forward as against all the persons found to be concerned in the offence and also under any sections found applicable to the facts which are the subject-matter of the complaint. It was so held in this Court in the case of 15 PLT 438(3) and in 15 PLT 694(4). The complaints considered in those cases were complaints by private parties and not of offences requiring a complaint by a Court for the institution of proceedings.
3. But I have no doubt that the principle applies; cognizance having been taken of an offence, the inquiry will proceed against all the persons whom the evidence shows to have been concerned in it provided that the Court making the complaint and naming some persons therein has not expressly considered and decided in the negative, the question whether other persons should also be prosecuted on the same facts. I am satisfied therefore that Section 195 of the Cr PC, was no bar to the conviction of the appellant Raghubar Dayal under Ss. 467 and 193, of Jugal Lal under S. 471/109, of Jugeswar Singh under S. 467 and S. 467 read with S. 471, and of Jagdeo Singh under S. 467 read with S. 471. I need not discuss the proceedings against Bhikhari who has been acquitted. There was a further charge against all the appellants under S. 120-B, I.P.C which was not framed by the committing Magistrate but by the Sessions Judge. The appellants have been convicted under this section also. No separate sentence was imposed, so the discussion of the propriety of the Sessions Judge framing a new charge under this section is somewhat academic. The law restricting the institution of a prosecution under S. 120-B, I.P.C, is contained in Section 196-A of the Cr PC, and it is noticeable that the restrictions apply not to every class of criminal conspiracy. Referring to S. 120-B, I.P.C, we find that sub-section (1) imposes a penalty equal to the punishment for abetment, on participation in a criminal conspiracy to commit an offence punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, in case no express provision is made in the Code for the punishment of such a conspiracy.
4. The section appears to have been in troduced to fill a gap in S. 107, I.P.C defining abetment. Under S. 107, secondly, a person abets the doing of a thing who engages with others in a conspiracy for the doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy. Abetment of an offence is punishable under Ss. 109 or 114 as the case may be if the offence is committed, or under Ss. 115 and 116 as the case may be if the offence be not committed; but it is clear that a conspiracy will not amount to an abetment unless an act or illegal omission takes place in pursuance of the conspiracy. Therefore the first class of cases which S. 120-B is designed to cover, is that in which the conspiracy is formed for the commission of a serious offence but no act or illegal omission has taken place in pursuance of it. S. 120-A, which defines criminal conspiracy, enacts that an agreement to commit an offence may itself amount to a criminal conspiracy even if no overt act follows on the agreement.
5. The second class of cases is that in which the conspiracy is formed in order to do an illegal act or an act not illegal by illegal means; this sort of conspiracy in no case amounts to abetment and does not amount to a criminal conspiracy unless some act besides the agreement is done in pursuance thereof. Thus, whereas S. 120-A provides an extended definition of criminal conspiracy covering acts which do not amount to abetment by conspiracy within the meaning of S. 107, Section 120-B provides a punishment for criminal conspiracy “where no express provision is made in this Code for the punishment of such a conspiracy.” Where a criminal conspiracy amounts to an abetment under S. 107 it is unnecessary to invoke the provisions of S. 120-A and 120-B because the Code has made specific provision for the punishment of such a conspiracy. In the case before us, the offences which are alleged to have been the object of the conspiracy were in fact committed; so the conspiracy amounted to abetment. The Court should not, therefore have framed additional charges under S. 120-B. Appellants having been convicted on the substantive charges framed were not liable to be convicted also of conspiracy. Argument was entered into on the question whether there was a proper sanction to the framing of charges under S. 120-B. It is not necessary to go into this matter when on other grounds those charges have failed. I would set aside the convictions under S. 120-B, I.P.C, while confirming the convictions under the other sections. The Sessions Judge has imposed sentences of 5 years on Raghubar Dayal, of three years on Jugal and Jageshwar and of 2 years on Jagdeo. As the sentences do not appear to be excessive, I would dismiss the appeal.
6. Dhavle, J.:— I agree. As regards the merits there cannot be any doubt on the evidence that the forgery and connected offences have been brought home to the appellants as charged. As regards the initiation of these proceedings the facts are very peculiar. Stress has been laid by the appellants on the facts that though the first complaint under Section 195 of the Cr PC, was made by Khan Sahib Saiyed Muhammad Islam signing as Honorary Magistrate, he was at that time without any powers as a Magistrates S. 195(c) requires a complaint of the Court in which the forged document was produced or of some other Court to which such Court is subordinate. The forged mortgage bond had been produced before Mr. Islam during his trial of the case, brought under S. 447, I.P.C, by Shamdeo against Jageshwar Singh and Jagdeo Singh, in exercise of the powers of a Magistrate conferred upon him for three years by the notification of 27th September, 1930. When these powers expired by lapse of time, he was not succeeded by any other Magistrate.
7. But the proceedings he took under Section 476 of the Cr PC, were based on an application made by Shamdeo during the trial of the case under S. 447, I.P.C It was on this application that immediately on the disposal of that case the Honorary Magistrate ordered notices to issue against the five persons tried by the Court of Session to show cause why a complaint should not be made against them in respect of offences arising out of the forgery and its user. Before the expiry of his powers as a Magistrate, Mr. Islam adjourned these preliminary proceedings on the request of the five persons, as they represented that the same matter was directly and substantially in issue in the appeal that Jageshwar and Jagdeo had preferred against their conviction. The appeal was disposed of and the record returned after the expiry of the magisterial powers of Mr. Islam, who however proceeded to complete the preliminary proceedings under Section 476 of the Cr PC, without any objections raised by the five accused as regards his authority. He complained against three persons only out of the five, and on an appeal by Shamdeo under Section 476-B of the Cr PC, the District Magistrate complained against the other two. The terms of this latter complaint distinctly indicate that the District Magistrate endorsed the complaint of Mr. Islam against the other three accused. The District Magistrate concluded:
The witnesses against them (Raghubar and Bikhari) will be the same as in the case against the other three persons already prosecuted over the same transaction. The present accused should also be proceeded with in the same case.
8. It was upon these two complaints that the Committing Magistrate proceeded against the five persons. The power, if it may be so-called, to make a complaint under S. 476, is not among the powers specified in Schs. 3 and 4, Code of Criminal Procedure, and is not a Magisterial power, for it can be exercised as well by Civil or Revenue Courts as by Criminal Courts. The object of S. 195 clearly is to avoid harassment at the instance of private parties who may be acting for reasons of their own rather than in the interests of the administration of justice, and the complaint required by the section merely bars the taking cognizance of offences in the ordinary way under S. 190(1). It cannot be said that this object was in any way defeated by the fact that at the time he made his complaint, Mr. Islam was not empowered to act as a Magistrate. He was not an officious intruder, but was merely completing the preliminary proceedings that he had begun before the expiry of his powers as a Magistrate and that he had adjourned at the request of the accused; and he was doing this at a time when it is not suggested on behalf of the appellants that there was in existence any Court which could be pointed out as the proper Court for completing the proceedings.
9. Had any objection been raised at that time on behalf of the accused, the matter would doubtless have been disposed of by the District Magistrate under S. 559(2). But in any event Mr. Islam's complaint against Jageshwar, Jagdeo and Jugal was definitely endorsed by the District Magistrate while exercising his powers under S. 476-B in respect of the other two accused. It seems to me that it is now too late under S. 537 of the Code for the appellants to ask for a reversal of their convictions on the ground “of any error, omission or irregularity in the complaint” required under Section 195 for the initiation of the proceedings against them, since the objection could and should have been raised at more than one earlier stage in the proceedings. As regards the charge under S. 120-B, I.P.C, I observe that this section was mentioned in Shamdeo's initial application to the Honorary Magistrate against all the five accused merely on the footing that they had conspired to forge the mortgage deed to support the false claim of Jageshwar and Jagdeo in the case under S. 447.
10. There never was any case of criminal conspiracy against these persons apart from the forgery and its user, and it is not suggested by the learned advocate for the appellants that any evidence was given on the charge of criminal conspiracy apart from what was given in respect of the other offences. The conspiracy was only inferable from the forgery and user, if proved, but would in that case come within the provisions of the Penal Code as regards abetment and would therefore not be punishable under S. 120-B at all.
11. The charge under this section against the accused was thus also entirely unnecessary. The formal addition of such a charge has plainly not affected the decision of the case on the merits, and it will therefore be sufficient to set aside the convictions of the appellants under this charge.
V.B/R.K
12. Appeal dismissed.
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