In this case 46 persons (excluding Lalit Mohan Chakravarty who has turned approver) have been on their trial since the 1st instant on charges under secs. 121A, 122 and 123 of the Penal Code under the provisions of the Criminal Law Amendment Act (XIV of 1908) before a Special Tribunal of the High Court consisting of Jenkins, C.J, and Brett and Chatterjee, JJ.
Mr. J.N Roy (with him Mr. B.C Chatterjee and Mr. S.K Sen) appearing for one set of accused, objected at the outset to the form of the charge wherein the accused were alleged to have conspired with persons “known and unknown”* as had for vagueness and uncertainty. Every accused person, he submitted, is entitled to know with certainty and accuracy the exact value of the charge brought against him, specially so in cases where it is sought to implicate him in acts not committed by himself but by others with whom he was in company or in association. Mr. Roy referred to Behari Mahton v. Queen Empress(1).
[Jenkins, C.J:— In a conspiracy case the accused can be charged with conspiring with persons unknown, but if they are charged with conspiring with persons known then such persons must be named in the charge.]
Mr. P.L Roy (with him Messrs Pugh, Chatterjee, Keays and Bagram) for the Crown agreed to amend the charge in the light of the foregoing remarks, and handed in the charge as amended with the names of about 20 ‘known’ persons added.
Mr. J.N Roy objected to the amended charge as taking the defence by surprise at this stage, and as calculated most seriously to embarrass it.
[Jenkins, C.J— Surely Mr. Roy you cannot be serious; you cannot seriously intend to add so many names on the charge at this stage.]
Mr. P.L Roy, on further consideration had the charge re-amended which was then put in with 8 fresh names added, being those of the persons who were described in the charge as ‘known.’
At the conclusion of the evidence of the complainant M. Murray, Mr. J.N Roy drew the attention of the Court to the fact that the name of the accused Haripado Adhikari did not appear in the petition of complaint, and submitted that he was not therefore properly before the Tribunal in this trial, and should be discharged from if.
Mr. P.L Roy.—The name of Haripado appears in the sanction, and that is sufficient for the purpose.
Mr. J.N Roy.—I submit a person cannot be on his trial except upon a complaint; where there is no complaint there is no jurisdiction, and consequently in the present case your Lordships have no jurisdiction, nor had the committing Magistrate, over this man Haripado.
[Jenkins, C.J— That seems to be a perfectly sound contention. Sec. 196 of the Criminal Procedure Code confers no jurisdiction upon the Court 10 try a person in cases falling within its purview except upon a complaint made with the previous sanction of the Local Government. Here we have the sanction, but not the complaint, as far as the accused Haripado is concerned. And a defect in procedure laid down by sec. 196 cannot be remedied at all.]
Mr. P.L Roy.— I submit there was a complaint against Haripado inasmuch as there was an application for issue of process against him. A complaint need not be in writing, it might be oral. Mr. Murray, the complainant in this case, when examined before the Magistrate stated that he asked for process against those who were mentioned in the sanction.
Mr. J.N Roy.— Mr. Murray was asking for process only against the persons actually named in the complaint, and against whom Government had granted sanction. Since this man's name does not appear in the complaint the mere fact of its inclusion in the sanction would confer no jurisdiction on the Court to try him, the condition precedent to every trial being a complaint.
[Jenkins, C.J— That is so. It has been held that a letter by Government sanctioning a prosecution may be an authority to institute a prosecution, but the letter itself is not a complaint. Sanction is different from complain.]
Mr. P.L Roy.— Your Lordships would see that process was asked for against Haripado as one of the men named in the sanction, and that application for issue of process under the circumstance constituted a complaint.
[Jenkins, C.J— What is a complaint? Look at sec. 4, cl. (h). Where is the allegation in the present case made orally or in writing to the Magistrate with a view to his taking action? An application for issue of process must be preceded by a complaint, otherwise no such application could be heard. An application for issue of process does not fall within the definition of ‘complaint.’]
Mr. J.N Ry.— I ask your Lordships to direct that the accused Haripado do stand down from the dock. I have no right to ask for more.
[Jenkins, C.J— Let him stand down. We do not say he is acquitted, but as far as the present trial is concerned we say he is discharged, and we have no jurisdiction over him.]