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PETITIONER: MATUKDHARI SINGH AND OTHERS

       Vs.

RESPONDENT: JANARDAN PRASAD

DATE OF JUDGMENT: 20/07/1965

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SARKAR, A.K. RAMASWAMI, V.

CITATION:  1966 AIR  356            1966 SCR  (1) 255

ACT: Code   of  Criminal  Procedure,  ss.   417,   423-Magistrate acquitting  accused  of charges in respect of which  he  had jurisdiction-Ignoring  evidence  of charges  in  respect  of which  he  had  no  jurisdiction-High  Court  setting  aside acquittal  and  ordering retrial-Legality  of  High  Court’s order.

HEADNOTE: The  appellants were tried on a complaint by the  respondent before  an Honorary Magistrate for offences under  ss.  420, 468,  406 and 465/471 Indian Penal Code and acquitted.   The Magistrate  rejected  the complainant’s request to  frame  a charge  under  s.  467 Indian Penal Code,  and  commmit  the accused to the Court of Sessions.  The complainant  appealed to  the  High Court against the acquittal.  The  High  Court held  that  the evidence prima facie  disclosed  an  offence under  s. 467 and even though the complaint did not  mention that section it was the duty of the Magistrate to commit the case  to sessions.  It accordingly set aside the  acquittal, and ordered a retrial.  The appellants came to this Court by special leave. It was contended on behalf of the appellants that the  trial before  the  Magistrate,  in so far as  it  went,  was  with jurisdiction and it could not be   set aside merely  because the High Court thought that a charge under s.     467  might be framed, and that such a proceeding is not contemplated. by   s. 423(1) of the Code of Criminal Procedure. HELD:  (i)  If the Magistrate had applied his  mind  to  the relevant  evidence he would have seen that the main  offence was under s. 467 read with s. 471and  the  other  offences were subsidiary.  It was thus not proper for him tochoose for trial only such offences over which he had  jurisdiction andto  ignore  the other offence over which he  had  none. His duty clearly wasto frame a charge under s. 467  and to  commit  the appellants to stand their trial  before  the Court of Sessions. [259 G] (ii)It  is  wrong  to contend that the High  Court  had  no jurisdiction  in  the matter because the  trial  before  the Honorary  Magistrate  (in  so  far  as  it  went)  was  with jurisdiction.   If  it  were so there  would  be  no  remedy

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whenever a Magistrate dropped serious charges ousting him of his   jurisdiction   and  tried  only   those   within   his jurisdiction. [260 B-C] Dr.   Sanmukh Singh Teja Singh Yogi v. Emperor, A.I.R.  1945 Sind 125, approved. However hesitant the High Court may be to set aside an order of acquittal and to order retrial, it has jurisdiction under the code to do so if the justice of the case clearly demands it  and  a  case of omission from the charge  of  a  serious offence  prima  facie disclosed by the evidence, is  one  of those  circumstances  in  which the power  can  properly  be exercised  particularly when the charge for the  offence  it framed  would  have  ousted the jurisdiction  of  the  trial court. [260 D-E] Abinash Chandra Bose v. Bimal Krishna Sen, A.I.R. 1963  S.C. 316,  Ukha Kolhe v. State of Maharashtra, A.I.R.  1963  S.C. 1531, Barhamdeo 256 Rai  and  others  v.  King-Emperor,  A.I.R.  1926  Pat.   36 Balgobind Thakur and others v. King-Emperor, A.I.R. 1926 Pat 393  and K.E.V. Razya Bhagwanta, 4 Bom.  L.R. 267,  referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 26  of 1965. Appeal  by special leave from the judgment and  order  dated August  10, 1964 of the Patna High Court in Criminal  Appeal No. 66 of 1962. R.K. Garg, S. C. Agarwala and D. P. Singh, for the appel- lants. D. Goburdhun, for the respondent. The Judgment of the Court was delivered by Hidayatullah,  J. B in order pronounced on May 7,  1965,  we ordered  the  dismissal  of this  appeal  but  reserved  our reasons which we now proceed to give. The five appellants were tried on a complaint by the respon- dent Janardan Prasad before the Honorary Magistrate.   First Class,  Jehanabad  for  offences under ss.  420,  468,  406, 465/471,  Indian Penal Code.  They were acquitted on  August 31,  1962.   The complainant obtained special leave  of  the High Court at Patna under s. 417(3) of the Code of  Criminal Procedure and filed an appeal against their acquittal.   The High Court set aside the acquittal and remanded the case  to the  District Magistrate of Gaya with a direction  that  the case  be inquired into under Chapter XVIII of the Code  from the  stage of taking evidence under s. 208, with a  view  to their committal to the Court of Session.  The appellants now appeal  by special leave against the judgment and  order  of the  High Court.  The facts of the prosecution case may  now be stated briefly. Janardban   Prasad  and  his  brother  Jangal  Prasad   were separate,   having,   prior  to  the   present   occurrence, partitioned  their  lands by metes and bounds.   Plots  Nos. 1810  and 1811 in village Kalpa Kalan fell to the  share  of Jangal  and  plot No. 1699 in the same village fell  to  the share  of Janardan.  Jangal Prasad’s plots lie close to  the dalan  of  Matukdhari and his brothers Rameshwar  Singh  and Dhanukdhari  Singh  (the first three  appellants)  and  they coveted  them.   Janardhan alleged that they forged  a  sale deed  in  respect of half the area of those  two  plots  and presented  the  documents for registration.   Janardhan  was

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aggrieved  but on the intercession of Deoki Lal  and  Chhedi Lal (appellants 4 and 5)                             257 the dispute was compromised and it was agreed that Janardhan would  execute  a sale deed for plot No. 1699  and  half  of another  plot  No.  1491 while Matukdhari  and  his  brother Dhanukdhari Singh agreed to sell in return O.10 acre in  one of their plots (No. 1797) to him.  The complainant  executed two  sale  deeds  in  respect of  the  two  said  plots  and Dhanukdhari  Singh executed a sale deed in respect  of  plot No.  1797 as it was in his name.  The latter sale  deed  was taken  in  favour of Janardhan’s son.   All  documents  were scribed  by  Deokilal with the help of Chhedi Lal  and  were presented for registration.  The receipts obtained from  the Registration Office were left with Deokilal till the  result of the first registration case (which was fixed for February 8,  1960) was known.  When Janardhan asked for the  receipts he  was put off.  He found later that the two documents  had already been withdrawn by forging his signature.  Matukdhari had withdrawn the deed executed by Janardhan and Dhanukdhari the  sale  dead executed by himself.   The  complainant  was assured by Deokilal and Chhedilal that the deed executed  in favour of his son would be returned by Rameshwar Singh  with whom,  it was said to be lying, but Rameshwar Singh  refused to do so.  The complaint was, therefore, filed. The Sub-Divisional Officer, Jehanabad took cognizance  under ss. 468, 406 and 420, Indian Penal Code and sent the case to the  Hony.  Magistrate for disposal.  The Hony.   Magistrate drew up charges against all the accused under s. 420, Indian Penal  Code.   In  addition,  Chhedilal  and  Deokilal  were charged  under s. 468, Indian Penal Code and s. 406,  Indian Penal  Code respectively.  Matukdhari was charged under  ss. 465/471, Indian Penal Code.  These charges could be tried by the  Honorary  Magistrate.  No charge under s.  467,  Indian Penal Code was framed against any of the appellants.  If  it had been framed the case had to be committed to the Court of Session.   On March 29, 1962 the complainant, by  a  written application,  asked that action under Chapter XVIII  of  the Code  be  taken but the Magistrate declined  to  commit  the accused.   Another application dated June 28, 1962, for  the same purpose was also rejected.  The learned Magistrate held that  the evidence of entrustment of the receipts  from  the office  of the Registrar was not satisfactory  and  Deokilal could not be convicted under s. 406, Indian Penal Code.   He further  held,  mainly  on the ground  that  no  handwriting expert  was examined, that it was not possible to  say  that there  was forgery of the signatures or that Matukdhari  had used  the  receipts knowing them to, be  forged.   On  these findings the appellants were acquitted. 258 In  his  appeal before the High Court the  complainant  con- tended  that  the trial before the  Magistrate  was  without jurisdiction  -as  the Magistrate should  have  acted  under Chapter  XVIII with a view to committing the accused to  the Court of Session for trial as the facts disclosed an offence under   S.  467,  Indian  Penal  Code,  which   is   triable exclusively by the Court of Session.  He contended that  the offence  was  made out on his evidence and  as  registration receipts were valuable securities under S. 30 of the  Indian Penal  Code a charge under S. 467, Indian Penal Code  should have been framed.  This argument found favour with the  High Court  and  it was held that although s. 467,  Indian  Penal Code was not mentioned in the complaint, a charge under that section  ought to have been framed.  The High Court  pointed out  that  it was the duty of the Magistrate  to  apply  the

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correct   law  and  if  the  facts  disclosed   an   offence exclusively triable by the Court of Session he ought to have framed  that  charge and not assumed jurisdiction  over  the case  by  omitting it.  In the opinion of the High  Court  a prima facie case existed for framing a charge under s.  467, Indian  Penal Code, which meant that the case ought to  have been committed to the Court of Session.  The acquittal  was, accordingly, set aside and retrial ordered.  In this  appeal the  judgment  is  assailed as  erroneous  and  against  the principles laid down by this Court for dealing with  appeals against acquittals. Mr. Garg relies strongly upon two cases of this Court.  They are  Abinash Chandra Bose v. Bimal Krishna Sen  and  Anr.(1) and Ukha Kolhe v. State of Maharashtra(1).  He contends that the  trial before the Magistrate, in so far as it went,  was with  jurisdiction  and  it could not be  set  aside  merely because  the High Court thought that a charge under s.  467, Indian Penal Code might have been framed.  He contends  that such  a proceeding is not contemplated under  S.  423(1)(a). Criminal  Procedure Code as explained by this Court  in  the two  cases cited above.  He further refers to Barhamdeo  Rai and  others v. King-Emperor(3), Balgobind Thakur and  others v.  King  Emperor (4 ) and K. E. V. Razya  Bhagawanta(5)  as instances  where,  the  trial being  with  jurisdiction,  no retrial was ordered even though it was submitted to the High Court  that some other offences triable exclusively  by  the Court  of Session with which accused could be charged,  were also  disclosed.  These cases need not detain us.   They  do not  deny  the power of the High Court to order  a  retrial. The High Courts in those cases (1) A.I.R. 1963 S.C. 316.                   (2) A.I.R.  1963 S.C. 1531. (3) A.I.R. 1926 Pat. 36.                    (4) A.I.R.  1926 Pat. 393. (5)  4 Bom.  L. R. 267.                             259 did  not order a retrial because the accused were  convicted of lesser offences and the sentences imposed were considered adequate in all the circumstances of those cases. The  two  cases  of  this Court were  considered  by  us  in Rajeshwair Prasad Misra v. State of West Bengal(1).  We have pointed  out  there  that a retrial may  be  ordered  for  a variety of reasons which it is hardly necessary or desirable to state in a set formula and the observations of this Court are illustrative but not exhaustive.  The Code gives a  wide discretion   and   deliberately   does   not   specify   the circumstances for the exercise of the discretion because the facts  of  cases that come before the courts  are  extremely dissimilar.   We pointed out that it would not be  right  to read the observations of this Court (intended to  illustrate the meaning of the Code) as indicating in advance the  rigid limits  of  a discretion which the Code  obviously  intended should be developed in answer to problems as they arise.  We gave some illustrations of our own which fell outside  those observations  but which might furnish grounds,  in  suitable cases, for an order of retrial.  This case also furnishes an example  which  may be added to that list.  The  High  Court pointed out that there was evidence that the endorsements on the  receipts were not made by Janardhan.  Janardhan  denied on  oath that he had written them and stated that they  were written by one of the respondents, with whose handwriting he claimed  to be familiar.  There was prima facie evidence  to show   that   the  two  deeds  which  were   presented   for registration  were  taken  out on  the  strength  of  forged receipts.   No  suggestion was made to Janardhan  in  cross-

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examination  that he had endorsed the receipts in favour  of Matukdhari  or  Dhanukdhari.   If he  had  not  written  the endorsements,  some  one else must have done so.   No  doubt handwriting   experts   could  have  been   examined.    The Magistrate could have taken action under s. 73 of the Indian Evidence  Act but this was not done.  If the Magistrate  had applied  his mind to the problem he would have  seen  easily that a prima facie case of forgery was made out.  He  should then  have  considered whether the  receipts  were  valuable security  or  not.  If he had done that he would  have  seen that the main offence would prima facie be one under s. 467, Indian  Penal Code read with s. 471 and the  other  offences were  subsidiary.  It was thus not proper for him to  choose for trial only such offences over which he had  jurisdiction and  to ignore other offences over which he had  none.   His duty  clearly  was to frame a charge under  s.  467,  Indian Penal Code (1)[1966] 1 S.C.R. 178. 260 and to commit the appellants to stand their trial before the Court of Session. It was open to the High Court, while hearing an appeal under s.  417(3) of the Code to direct the Magistrate to  frame  a charge  for an offence which was prima facie established  by the evidence for the prosecution and also to order that  the accused  be committed to the Court of Session.  It is  wrong to  contend that the High Court had no jurisdiction  in  the matter because the trial before the Honorary Magistrate  (in so  far  as it went) was with jurisdiction.  If it  were  so there  would  be  no remedy whenever  a  Magistrate  dropped serious  charges ousting him of his jurisdiction  and  tried only those within his jurisdiction.  The High Court followed a case of the Sind Chief Court reported in Dr. Sanmukh Singh Teja  Singh Yogi v. Emperor(1) where retrial was ordered  in very similar circumstances.  We were referred to that ruling and  on reading it we do not think the High Court was  wrong in  accepting  it  as a  correct  precedent.   For,  however hesitant  the  High Court may be to set aside  an  order  of acquittal  and to order retrial, it has  jurisdiction  under the  Code  to  do so, if the justice  of  the  case  clearly demands  it  and  a case of omission from the  charge  of  a serious offence prima facie disclosed by evidence, is one of those  circumstances  in  which the power  can  properly  be exercised  particularly when the charge for the offence,  if framed,  would  have ousted the court of trial  of  its  own jurisdiction. Mr. Garg submitted finally that acquittals are not set aside in  other  jurisdictions and cited the  example  of  English Criminal  Law.  He submitted further that the setting  aside of  an acquittal with a view to holding a second trial  robs the  accused  "of the reinforcement of  the  presumption  of innocence which is the result of the acquittal".  As to  the first  submission  it  is  sufficient to  say  that  in  our criminal jurisdiction a retrial is possible and we need  not be  guided by other jurisdictions.  No doubt the High  Court must  act  with  great care and caution and  use  the  power sparingly  and only in cases requiring interference.  As  to the  second  it  is  not  necessary  to  consider  how   the presumption  of innocence is reinforced by an acquittal  and to  what extent.  The phrase in any event is hardly  apt  to describe  a case where the accused is acquitted  perversely, or without jurisdiction.  All that can be said is that these appellants were presumed to be innocent at their first trial (1)  A.I.R. 1945 Sind 125.                             261

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and  will not be thought less so at their second trial  till their guilt is established legally and beyond all reasonable doubt. In our judgment the High Court acted within its jurisdiction when  it set aside the acquittal of the appellants and  made an order for their retrial in the terms it did.                      Appeal dismissed.. 262