KHUSHI RAM Vs. HASHIM

JUDGEMENT

(1.) This is an appeal by special leave by Khushi Ram against the order passed by Mr. Justice B. R. James of the Allahabad High Court purporting to exercise his inherent power under S. 561A of the Code of Criminal Procedure. It a appears that on the evening of 6th June, 1955, the marriage procession to celebrate Khushi Ram's son's marriage was proceeding through a narrow street in the city of Meerut. This procession came into clash with a number of Rikshawpullers and that led to a riot. In this riot one person was killed and persons on both the sides were injured. Ultimately Sub-Inspector Lal Singh accompanied by constables rushed to the spot, quelled the riot and arrested a number of rioters on the spot. This incident gave rise to two cross-cases. Persons on Khushi Ram's side, numbering in all 31, were charged with having committed several offences. Puran Singh amongst them was charged under S. 302, while the others were charged under Ss. 323, 332, and 147 read with S. 149 of the Indian Penal Code. In the other case which was started on the complaint of Khushi Ram, 22 persons were charged with having committed offences under Ss. 395, 397, 147 and 325 read with S. 149 of the Indian Penal Code. Both the cases were heard by the learned Magistrate in the course of commitment proceedings and both of them ended with orders of commitment. In regard to the case which started on the complaint of Khushi Ram the learned Magistrate took the view that five persons, who were police officers, amongst the accused, should be discharged. According to the learned Magistrate all that the Sub-Inspector and the four constables did on the 6th June, 1955, was to restore peace and order by quelling the riot and no charge could therefore be framed against them. The learned Magistrate found in favour of the prosecution story against the remaining 17 persons that a prima facie case had been made out against them. It is on this finding that he made an order committing the 17 accused persons to trial before the Court of Sessions, for the offences already mentioned. This order was challenged by the accused persons before the Allahabad High Court by an application made under S. 561A of the Code. The learned Judge who heard this application was persuaded to take the view that it was competent for him to interfere with the order of commitment in question under S. 561A and that on the merits interference with the said order was justified. That is why the learned Judge allowed the application made by the accused persons and quashed the order of commitment passed by the learned Magistrate against them. It is this order which is challenged before us by Mr. Gopal Singh on behalf of Khushi Ram.

(2.) The judgment delivered by the learned Judge in exercising his jurisdiction under S. 561A shows that S. 215 had been cited before him by the complainant and it was urged before him that it was not competent to the learned Judge to entertain the application for quashing the commitment proceedings under S. 561A of the Code. The argument was that under the Code of Criminal Procedure the commitment once made under S. 213 can be quashed only by the High Court and that also only on a point of law. The learned Judge, however, was not impressed by this argument. He held that the absence of evidence was a question of law pure and simple and since in his opinion, there was no evidence to justify the order of commitment, he was entitled to quash the said order.

(3.) In our opinion the learned Judge has clearly misdirected himself in dealing with the application before him. From the judgment it appears that the learned Judge was impressed by four circumstances in favour of the accused. He thought that the delay made by Khushi Ram in filing the complaint was a suspicious circumstance and he has observed that: