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Section 249 in The Indian Penal Code
The Indian Penal Code
Section 448 in The Indian Penal Code
Section 364 in The Indian Penal Code
Section 437 in The Indian Penal Code

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Punjab-Haryana High Court
Jagmal Raja vs The Crown on 6 September, 1949
Equivalent citations: 1950 CriLJ 590
Author: Falshaw
Bench: Falshaw

JUDGMENT

Falshaw, J.

1. This judgment will deal with two petitions by Shri Jagmal Raja, the first Under Section 661A and the second Under Section 439 Criminal P.C.

2. The petitioner is one of fire accused against whom a case is pending Under Section 161, Penal Code, Section 5 (2)(d), Prevention of Corruption Act, ii [3] of 1947 and Section 109, Penal Code. The other four accused involved in the case are Mr. N. N. Mitra, who at the time of the alleged offence was Secretary to the Air Transport Licensing Board, Mr. Dhanvin B. Shukla, Mr. Vijaysingh Govindji and Mr. Bahadursingh Vijaysingh. The accused other than Mr. Mitra are connected with the company known as the Ambica Air Lines Ltd,, of Bombay, Mr. Shukla being the representative of the firm in Delhi while the other three, according to the prosecution allegations, are partners in the firm Govindji and Sons who are the managing agents of Ambica Air Lines Ltd. The case againbt the accused is that this company at the end of the year 1947 had an application pending before the Air Transport Licensing Board for the licensing of various air routes, and in order to obtain favourable consideration for this application a bribe of BSection 12,000 was paid by the company to Mr. Mitra. The method of payment of the bribe was that a cheque for BSection 19,000 signed by Bahadursinh Vijaysingh aocused as a partner in the firm of managing agents and drawn on the New Delhi branch of the Central Bank of India in the account of Atnbika Air Lines Ltd. was paid to Messrs. Prem Nath Motors Ltd. of New. Delhi; in consideration for this cheque a new Oldsmobile Cat No. DLA 1234 was delivered to Mr. Mitra on and Janu. ary 1948. It is alleged that the negotiations were carried out through Mr. Shukla aocused and that the three partners of the firm of managing agents were liable, one of them for having drawn the cheque and the other two for having abetted the transaction. Owing to the fact that the Punjab Public Safety Act was in force in Delhi Province the case has been tried according to the procedure for the trial of summons oases. Under this procedure what was in effect the charge against each of the accused was read out to him and he was asked to show cause why he should not be convicted. The gist of the statements of the accused recorded in this manner was that the car had been purchased by Mr. Mitra under hire-purchase agreement with the company called the Jayant Trading Corporation, Ltd. of Bombay, and that the cheque had been drawn on the account of Ambica Air Lines Ltd. at Delhi simply for convenience, as the Jayant Trading Corporation had bo account at Delhi. It was denied that the present petitioner was partner in the manging agency, his own statement being as follows: I plead not guilty to the charges. I had no knowledge of this transaction. I was not even in Bombay at the time this transaction took place, I am not a partner of the managing ageney of the Ambioa All Linea Ltd., Bombay, though I am a Director of the Steamship Navigation Co., along with six others, whioh Navigation Company is a partner in the said managing agency. I did not even know Mitra co-accused.

3. On 16th June 1949, the prosecution evidence, whioh consisted of the statements of 25 witnesses and a considerable amount of documentary evidence was olosed, Qn 17th june an application was put in on behalf of the present petitioner Under Section 249, Criminal P.C. for his immediate release. The section in question, which falls in the chapter dealing with the trial of Bumons cases, reads:

In any case instituted otherwise than upon complaint, a Presidency Magistrate, a Magistrate of the first class, or with the previous sanction of the District Magistrate, any other Magistrate may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction, and may thereupon release the accused.

The grounds on which it was sought to apply the provisions of B, 249, were that the prosecution had not produced any evidence at all whioh pointed to the guilt of the petitioner, and that although the chapter relating to the trial of summons cases did not contain any specific provisions for the discharge of the accused at any intermediate stage in case such as are contained in Section 253 relating to the trial of warrant cases, Section 249 could be applied for the purpose of passing an order which would have the same effect in a case in which the prosecution evidence did not establish a case against one out of a number of accused. The learned Additional District Magistrate declined to go into the question whether any case was established against the petitioner by the prosecution evidence, but held that he was bound to continue the trial under the provisions of 8. 244, and then record an order either of acquittal or of conviction, and that Section 249 applied to a different set of circumstances and only came into play where the Court, for reasons to be recorded, was not prepared to pronounce a judgment of acquittal or conviction. In other words, the section only applied where circumstances prevented a Court from proceeding to the final determination of the points involved in the case, and it would not apply to a case where the prosecution had adduced evidence in accordance with the provisions of Section 244. On this the petitioner filed two petitions in the Court of the Sessions Judge, one Under Sectiona. 435 and 438, Criminal F, 0., against the order of the trial Court refusing to stop proceedings against the petitioner Under Section 249, Criminal P.C., and the other Under Section 5614, Criminal P.C., for the ease to be forwarded to this Court with the recommendation that the proceedings against the petitioner be quashed. The applications were by way of being alternatives, the relief sought being the quashing of the proceedings against the petitioner either under the inherent powers of the High Court Under Section E61A or else Under Section 249, Criminal P.C. Both these applications were dismissed by the learned Sessions Judge and similar petitions have now been filed in this Court.

4. On behalf of the petitioner, Mr. Parshotam TikamdaB has first argued the petition Under Section 661A, Criminal P.C., in support of which he has relied upon a number of decisions. The first cage was Jagat Chandra v. Queen-Empress 26 Cal. 786 : 3 0. W. N. 191, the relevant passage in which reads :

We finally proceed to consider the last question stated in the rule, viz., as to whether there is any case at all made out for the prosecution of the petitioner ; but before doing so, we desire to say that, in cue opinion, it ia only in very exceptional instances that this Court should be a Court of Revision interfere with the action of a subordinate Court in respect of any pending case, and especially when such a case has reached the stage where a charge has been drawn and only the defence of the accused remains to be heard. We do not desire to lay down, nor can we lay down, any hard and fast rule upon the subject, for the interference of this Court should be regulated by the particular circumstances of each case. But speaking generally it seems to us to be inadvisable to interfere in a pending case unless there is some manifest and patent injustice apparent upon the face of the proceedings and calling tot prompt redress. As we understand this portion of the rule, it contemplates the existence of such an in-just loe in the present case; for, if neither the complaint, nor the evidence for the prosecution, makes out any case whatever against this petitioner, it is manifest that he should not have been charged and so called upon to enter upon his defence, and it follows that he should not be left, for a moment longer than is necessary, in the position of a person accused of an offence and forced to defend himself against a charge which there is no legal evidence to establish.

The evidence in the case was then considered and it was found that no case at all was made out against the petitioner and the proceedings against him were accordingly quashed and he was discharged. It may be noted that this was an ordinary revision Under Section 439, Criminal P.C. and not a case Under Section B61A.

5. The next case was In re Shripad G. Chandraverkar A.I.R. (15) 1928 Bom. 184:(29 Cr.L.J. 917). This relates to a oase in whioh a pleader was prosecuted Under Section 216, Penal Code, for harbouring an offender against whom a warrant of arrest had been issued. The prosecution case had been closed and the oase adjourned for arguments as to whether a charge should be framed or not when the oase was transferred to another Court without notice to the accused who went to the High Court in revision, and it was held that the High Court has power at an interlocutory stage to quash the proceedings if a clear case is made out. Ordinarily, the High Court would not interfere at an interlocutory stage and interfere with the proceedings pending before a Magistrate, but when it appears that the accused is not guilty on the face of the proceedings, the High Court will interfere even at an interlocutory stage in order to prevent fur-ther harassment of the accused. The proceedings were quashed as it was found that the prosecution evidence did not disclose any offence at all against the petitioner.

6. In Sheosaranv. Jitendra NaihA.I.R. (16) 1928 Oadhi292 : 39 Cr. L J. 657, proceedings were quashed against an accused in a oase of cheating by a Division Benoh Under Section 561 A, as it was found that the allegations of the prosecution did not establish any' offence against the accused, in spite of the fact that a single Judge bad refused to interfere at an earlier stage in the proceedings.

7. In Baghunath Puri v. EmperorA.I.R. (19) 1932 Fat. 72, Mohammad Noor J. relying on Jagat Chandra v. Queen Empress 26 oal. 786 : 3 c. w. N. 191, held that ordinarily if the Magistrate has ordered an accused to be tried, the trial must proceed, but when the High Court is satisfied that an accused is being proseouted without there being any material before the Magistrate for his prosecution, it will be abdicating its function if it does not interfere to stop patent injustice calling for prompt redress.

8. In Wasinda Bam v. Bahadur Khan A.I.R. (21) 1931 Lah. 434 : 36 Cr.L.J. 20, Tek Chand J., held that where a charge is framed but the allegations of the proseoution disclose no offence, tbe High Court would in revision quash the charge and eet aside the proceedings as an abuse of the process of the oriminal Court.

9. The matter is dealt with comprehensively by Sir Syed Wazir Hasan 0, J. in Abdul Wali v. Emperor 9 Luck. 61 : A.I.R. (20) 1933 oudh 387 :36 Cr.L.J. 148), where he made the following observations (head-note ?) :

Ordinarily the High Court will not interfere at an interlocutory stage of oriminal proceedings in a subordinate Court but the High Court is under an imperative obligation to interfere in order to prevent the harassment of a subject of the Crown by an illegal prosecution. It would also interfere whenever there is any exceptional and extraordinary reason for doing so. One of the tests to apply in order to determine whether any particular ease is of that exceptional nature or not Is to see whether a bare statement of tha facts of the case should be sufficient to convince the High Court that it is a fit case for its interference at an intermediate stage. Another test to be applied Is to see whether in the admitted circumstances of the case it would be a mock trial if the oase is allowed to proceed. Broadly speaking the High Court will generally interfere in the interests of justice and to stop abuse of pro-QBi3a of law.

Where, therefore, the facts float on the surface and it seems that no assistance from a deus ex machina is required to see that there is not even a scintilla of suspicion of criminal liability as against the accused the High Court would interfare and quash the charge because to allow the proceedings to continue would be allowing a farce to be enactod to the great harassment of the accused.

10. From the above decisions, it was clear that it is unusual for the High Court to interfere in revision in oases pending in subordinate Courts, and that interference to quash proceedings should only take place in two contingencies, (1) if the prosecution allegations, even when accepted as true, do not establish any offence against the accused, and (2) where an offence is established if tha allegations are believed, but there is no evidence at all to support the allegations.

11. On behalf of the Crown, it is contended that in the present case there is some evidence which proves that the petitioner was one of the partners of the firm of managing agents and had authority to draw on the account from which the cheque by which the car is purchased in thia case was drawn. This evidence consists firstly of a resolution of the directors of Ambica Air Lines Ltd., passed on 21st November 1947 and recorded in the minute book and exhibited as p. ddd/i. This resolution was to the effect that a current account should be opened with the Central Bank of India Ltd., New Delhi, and that the managing agents Shri Govindji & Sons, of which (1) Vijaysingh Govindji, (2) Mr. Bahadursinh Vijaysingh and (3) Rai Bahadur Jagmal Raja were authorised to operate the aooount. There are also two letters exhibited as P. T. and p. K. which were written in consequence of this resolution, the firat being a letter sent by the managing agents to the manager of the bank at New Delhi informing him that specimen signatures and other relevant documents in connection with the account had been handed to the head.office of the Bank at Bombay to be forwarded to the New Delhi Branoh in due course, and also that, as suggested by the head-offioe of the Bank, the speoimen signature of Rai Bahadur Jagmal Raja, the remaining partner in the managing agenoy, would be sent direct to the bank at Delhi on the return of Rai Bahadur Jagmal Raja to 51-Cr.L.J. 75 & 76 Bombay. The second letter is a letter from the Bank at Bombay to the branoh at Delhi enclosing the documents referred to in Ex. p. T. and also stating that the specimen signature of Rai Bahadur Jagmal Raja was to be sent to the bank at Delhi, in due course. With this waa enclosed a copy of the resolution of the directors of the Ambica Air Lines Ltd.

12. In addition to this evidence, which furnishes a prima facie rebuttal of the petitioner's denial that he was a partner in the firm of managing agents, it is also contended that there are other circumstances from which inferences can be drawn against him that he waa a party to the transaction in dispute. One of these is that he is also the Chairman and a Director of the Jayant Trading Corporation through which the alleged hire-purchase arrangement on which the defence relies was carried out, the prosecution case, of course, being that this alleged hire-purchase arrangement was a Bham transaction. On behalf of the petitioner, it is contended that even if these facts are held to be proved they are not sufficient to establish the guilt of the accused, but it seems to pe that once it is shown that facts are proved from which any inferences at all can be drawn, the oase ceases to be one in which it would be proper for this Court to interfere in order to quash, proceedings in accordance with the principles which I have deduced above from the decisions cited on behalf of the petitioner, and I should only feel justified in interfering at this stage if it were apparent on the face of the record that there was nothing at all from which an inference could be drawn regarding the guilt of the petitioner, and, if I am not going to interfere, the less I comment on the merits of the case the better. As it is, I see no sufficient reason for quashing the proceedings Under Section 561A, Criminal P.C.

13. It was, however, urged before me that .-I should also give a decision on the question whether the lower Court could legally stop proceedings against the petitioner Under Section 249, Criminal P.C., if it felt that the circumstances justified such a course. It was contended that the learned Additional District Magistrate was wrong in holding that he had no power to act Under Section 249, and that if he felt that he would have discharged the petitioner Under Section 253, had the trial been under the procedure followed in the trial of warrant cases, there was no bar to his stopping the proceedings against the petitioner Under Section 219, Criminal P.C., under the summons procedure, and then allowing the oaee to go on to the normal end against the rest of the accused. Unfortunately the wording of Section 249 gives no indication of the Circumstances under which it was intended to be used, nor do any decided cages which I have been able to trace throw much light on this point. No new cases have been cited before me and the only two cases cited before the learned Additional District Magistrate were Nathu TJiakur v. Emperor A.I.R. f7) 1920 pat. 469 : 21 Cr.L.J. 184 ana Emperor V. Sripal A.I.R. (2l) 1934 ALL. 17 : 35 Cr.L.J. 56i. In the Patna case the facts were that a report was made to the police by one Jhurnak against a number of accused under BSection 147, 448 and 364, Penal Code. After a brief investigation the police reported to the Sub divisional Magistrate that the caee was false and thai; tbe complainant should be prosecuted Under Section 182, Penal Code. Tbe prosecution was accordingly ordered. A relation of the complainant, however, put in an application Under Section 107, Criminal P.C., against the same acoused alleging that the police investigation had not been genuine, and the matter was referred by the Magistrate to a respectable gentleman of the locality tor inquiry, who submitted his report that the complainant's original allegations were true and that tbe woman concerned in the case had since been abducted. On this report the Magistrate Stopped the proceedings in the ease Under Section 182, Penal Code, Under Section 249, Criminal P.C. and cancelled the issue of the summons against Jhuruak. It appears that a case under B. 365, Penal Code, was started against the accueed and also a fresh complaint was filed under SSection 147, 448 and 364, Penal Code, repeating the original allegations. The case came to the High Court by way of a revision against the order of the Magistrate for the issue of summons against the accused in the complaint case, which it was contended could not proceed while the case was pending against the complainant under B. 182, Penal Code. The power of the Magistrate to cancel the proceedings in that case was questioned, but it waa held by Adami J., that in the circumstances the order of the Magistrate Under Section 249, Criminal P.C. stopping the proceedings was quite legal. The section also eeeins to me to have been quite properly applied in that case.

14. la the Allahabad case the facts were that a number of accused were prosecuted by the police Under Section 13, Gambling Act, for gambling in a public thoroughfare. It appears that before the evidence of the witnesses was recorded, the Magistrate inspected the spot and found that the nearest public thoroughfare to the place Where the gambling was alleged to have taken place was 300 or 400 yards away. He accordingly passed an order releasing the accused under 6. 249, Criminal P.C. An application was later made by the Prosecuting Inspector for the reopening of the case on the ground that he and the Senior Superintendent of Police inspected the spot and found that there was a sort of foot-path in the immediate vicinity of the spot, but this application was rejected. The District Magistrate was then moved Under Section 428, Criminal P.C. and he passed an order to the effect that the order Under Section 249, did not ban further proceedings, and that further proceedings in the case should be taken. The accused went up in revision, his ease being forwarded to the High Court by aa Additional Sessions JudgB, and it was held by Iqbal Ahmad J., that an order Under Section 249, was neither one of dismissal of complaint nor waa it an order of discharge and therefore 8, 436 had no application and the District Magistrate had no jurisdiction to quash the order Under Section 249, and direct further inquiry into the case. It was also held that the order of the Magistrate Under Section 249 was justified on the merits and it was accordingly maintained. Here again I would agree that the order was legal, though I think it would have been better if the Magistrate had allowed the cases to proceed and acquitted the accused. The point involved in Achhru v. Emperor 9 P. B. -(Oil.) 1013 : 13 Cr.L.J. 860, was more or less simi-lar. Proceedings in a case ucder the Forest Act had been stopped by a Magistrate Under Section 249, and the District Magistrate, purporting to act Under Section 437, Criminal P.C. had ordered further proceedings. Sir Arthur Iteid C. J., belt that Section 437 had no applicability in a case in which proceedings had been stopped Under Section 249, but at tbe same time he hold that an order Under Section 249 was not an acquittal as pro. vided in the Explanation to Section 403 and therefore there was no bar to further proceedings in accordance with law. Unfortunately, however, the judgment ia very brief and givea no indioa-tion whatsoever of the circumstances under which the trial Court had stopped proceedings in the case.

15. The wording of the section itself is undoubtedly very wide and can cover any set of circumstances in which a Magistrate thinks that the proceedings in a summons case ought nof to be continued any longer. I am, however, iu-clined to share tbe doubts of tho learned Additional District Magistrate as to whether the section was intended to be applied in cases in which there are no special or unusual circumstances which make it difficult or impossible or even highly undesirable to proceed in tha n irmal way Under Section 244 and arrive at a finding on the guilt or innocence of the accused. In the ordinary course, only minor offences are intended to be tried under the procedure contained in chap. XX, and in such cases the ordinary practice is to record the evidence of both parties on the same day. Thus as a rule there can be very few cases in which there is any difficulty or undesirability about proceeding with the case to the end and recording a finding of conviction or aoquittal. In fact the procedure in chap. XX was never intended to ba applied to serious offences involving long and complicated cases like the present one, and I do not think that any finch situation as has arisen in the present case was ever contemplated when a. 249 was enacted. As it is, I can only express the opinion that there is no bar in 6. 2)9 itself to its being applied in the manner in which the present petitioner Bought to have it applied, namely for the purpose of giving what amounts to a discharge to one of a number of accused against whom no case at all is made out by the prosecution evidence. At the same time I consider that it is undesirable that it should be applied in this manner except in circumstances which would justify the High Court in quashing the proceedings against the accused concerned on the principles which I have arrived at above.

16. The result is that I dismiss both the petitions. I am informed by counsel that tho next date of hearing fised in the trial Court is 17th September 1949 aucl the records should, therefore, be despatched immediately.