GAYA GIR AND OTHERS Vs. VISWANATH PANDEY

JUDGEMENT

(1.) THE applicants were prosecuted by the State under Section 420 I.P.C. at the instance of Vishwanath Pandey. The prosecution case was that on the 9th August, 1951, Vishwanath Pandey was induced to part with a sum of Rs. 6000/ - to the accused who came and told him that his uncle was ill and wanted the money. So he had sent them to fetch it. It was alleged that on the 15th August, 1951, Mahatma Pandey, the uncle, came to Banaras and met Vishwanath Pandey and it was then learnt that he had never been ill and had never sent for the money. Thereupon Vishwanath Pandey lodged a first information report against the three applicants. After investigation a case was started against them. The matter remained pending for a long time before the Magistrate and eventually Vishwanath Pandey and Mahatma Pandey were produced before him.

(2.) ON the 20th March, 1952, after Mahatma Pandey's evidence had terminated the court fixed 27th March, for the statement of the accused persons. The special prosecuting officer was present and did not offer to produce any further witnesses, nor did he ask for time for the production of more witnesses. On the 27th March, 1952, again in the presence of the special prosecuting officer the accused filed a written statement and made an application praying that they may be discharged since no case had been made out against them. The learned Magistrate considered the matter and by his order dated 12th April, 1952, he discharged the accused. He held that there was in reality a dispute only of a civil nature between the parties and that Vishwanath Pandey wished to abuse the process of criminal law in order to bring pressure to bear upon the accused. He further held that in fact Mahatma Pandey never possessed the sum of Rs. 6,000/ -which he could have deposited with his nephew and that it was unlikely that he would keep such a large amount in his hands at his house. He also found that no useful purpose would be served by examining the remaining witnesses since they would not prove the existence of a sum of Rs. 6000/ - owned by Mahatma Pandey and at the most they could prove handing over of such a sum to the accused. He was of the opinion that the names and description of the witnesses indicated that they would not be trustworthy witnesses. He concluded that Mahatma Pandey could not have Rs. 6000/ - and there was no point in proceeding with the matter further. In exercise, therefore, of his powers under Section 253 Clause (2) Cr.P.C., which he expressly mentioned in the order, he discharged the accused and issued notice to the complainant, Vishwanath Pandey, to show cause why he should not be made liable under Section 250 Cr.P.C., to pay compensation to the accused.

(3.) NO doubt, it has been held in Chiranji Lal v. Ram Swarup : A.I.R. 1943 All. 9, that in a warrant case the procedure is that a Magistrate is himself responsible for summoning the witnesses who may be able to assist the Court in arising at a true conclusion. This does not, however, mean the Magistrate is bound to summon all the witnesses and cannot use his powers under Section 253 Clause (2) which clause also governs the procedure in warrant cases. In the present case on the findings arrived at by the Magistrate on a consideration of the evidence including the statements of the two principal witnesses namely, Vishwanath Pandey and Mahatma Pandey, it has been held by the Magistrate that the case was an entirely false one. Before the learned Sessions Judge could order further proceedings to be taken he had to be satisfied on one of two points: He had either come to the conclusion that the procedure followed by the Magistrate was not warranted by law or that the view which the Magistrate took of the evidence was such that no reasonable man could have taken it. The learned Sessions Judge says nothing on the second point. He took the view that the Magistrate had no authority to discharge the accused without recording the evidence of all the prosecution witnesses. I have already said that in this he is clearly wrong because he ignored the provisions of Section 253(2).