REX Vs. ALIMUDDIN AND OTHERS

JUDGEMENT

(1.) THIS is a revision by the Provincial Government against the order of the Assistant Sessions Judge of Banaras by which he dropped the charge of conspiracy under Section 120B, Penal Code against the five opposite parties and, instead, substituted a charge under Section 109, Penal Code.

(2.) THE facts which led to the prosecution of the opposite parties may be narrated here briefly. The Deputy Town Rationing Officer (Cloth), Banaras, Shri P.D. Dhoondiyal while inspecting the special permits cloth shop of one Ram Chander in Banaras city on 20th April 1946 discovered that a cloth permit No. 6996 issued from permit book No. 170 was forged inasmuch as the signature which purported to be his was not really in his handwriting. An enquiry then started for permit book No. 170 which had been in the Custody of Jagdish Prasad opposite party and it was found that it was missing from the office. It was also found that thirteen permits had been issued from this book which were all forged, but had been used as genuine and cloth had been obtained on the basis of them from the special permits cloth shops of Ram Chander, Munna and Thakur Prasad of Banaras city. The matter was then investigated by the Anti corruption Department. Police and resulted in the prosecution of the five opposite parties. During the investigation, the house of one of the opposite parties, namely, Alim Uddin, was searched and the permit book No. 170 is said to have been recovered from there. Further investigation is said to have revealed that there was a conspiracy between the five opposite parties and three others, the object of which was to forge permits from Book No. 170 and use those permits as genuine and take cloth from Special Permits cloth dealers of Banaras. Consequently the five opposite parties were prosecuted under Sections 420, 467 and 471, Penal Code read with Section 120B of the same Code. Besides this Alim Udddin was further prosecuted under Section 411 and Jagdish Prasad under Section 409, Penal Code with respect to the Permit Book. The committing Magistrate committed all the five opposite parties under Sections 420, 467 and 471 read with Section 120B, Penal Code and further committed Alim Uddin under Section 411, Penal Code and Jadish Prasad under Section 409 of the same Code, to the Court of Sessions. When the case came to the Court of Sessions, the Assistant Sessions Judge re -drafted the charges. This was necessary because the charges as drafted by the committing Magistrate, were rather confused. The Assistant Sessions Judge kept the charges under Sections 409 and 411, Penal Code as they were against Jagdish Prasad and Alim Uddin respectively. He framed a charge under Section 471, Penal Code read with Section 467 and under Section 420 of the same Code against Salik Ram with respect to one of the permits only, namely Ex. p.9. He also framed a charge under Section 471, Penal Code read with Section 467 and under Section 420 of the same Code against Madan Lal with respect to another permit, namely, Ex. P -2. It appears that he was also framing a further charge under Section 120B, Penal Code against all the five opposite parties for conspiracy, but there was some objection to this framing this charge. After, argument, he decided not to frame a charge under Section 120B, but, instead, framed a charge under Section 109, Penal Code only. It is against this order that the Provincial Government has come up in revision to this Court.

(3.) THE contention, on behalf of the Provincial Government, is that it was not open to the Assistant Sessions Judge to drop the charge of conspiracy under Section 120B and substitute in its place a charge under Section 109, Penal Code and that he had no power to do so. It is, therefore, urged that that charge should be restored. The application has been opposed on behalf of the opposite parties. The contention, on their behalf, is that the Assistant Sessions Judge cannot be deemed to have dropped the charge under Section 120B, Penal Code and that what he has done is merely to substitute a charge under Section 109 in place of the charge under Section 120B and that he had full power to do so.