JAHAR LAL CHANDRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS petition by Jahar Lal Chandra, Benoy Kumar Chandra and Bejoy Kumar Chandra who were summoned under Section 342 and 384 of the Indian Penal Code by the Magistrate on the orders of the Sessions Judge for further enquiry under Section 436 of the Cr. P. C. is directed against the order of the learned Sessions Judge and also the order passed by the learned Magistrate on the basis of the order of the learned Sessions Judge. The facts briefly are that Rabindra. the opposite party No. 2 filed before the Magistrate at Sealdah on 30 -10 -1958, a complaint against four persons, the present three petitioners and another Jagadanonda Chandra alleging that he was the Cashier of the firm of Messrs. P. C. Chandra of which the three petitioners and their brother, Jagadanan -da were the proprietors and that as such on 17 -7 -1958 he as usual at the end of the day's work made over the entire cash balance including a sum of Rs. 3,000/ - to Jahar Lal at about 9 -30 or 10 P.M., that on the 20th July at about 10 -30 or 11 A.M. Rabindra was sent for from his residence by the proprietors through two of their durwans and that when he went to their residence at P -24, C.I.T. Road, Entally he was taken to the first floor by the durwans and was kept - confined in a room and abused by them and he was questioned as to where he had kept the sum of Rs. 3,000/ -. His definite case was that all the four brothers were in the room and two of the durwans guarded the door of the room. It was further alleged that Benoy brought out revolver from another room and Bejoy brought a dagger and they threatened to murder the complainant and that Jahar Lal and Jagadananda also threatened him and they compelled him to write out a certain statement on a piece of paper admitting that he had abstracted the sum of Rs. 3,000/ - which was alleged to have disappeared from the cash box. It was further alleged that he was wrongfully confined in that room up to 3 P.M. that day. The learned Magistrate after the complainant was examined on oath ordered a search warrant for the tokcha -khata and then on seeing the return on the search warrant said that the story needed testing and ordered a judicial enquiry by another Magistrate. During the judicial enquiry a number of witnesses was examined on behalf of the complainant including himself. On the question as to what actually happened on 20 -7 -1958 in the residence of the accused petitioners the evidence of the - complainant and only two of his witnesses, namely, Nabani and Satyaban is material. The evidence of Nabani and Satyaban does not corroborate that of the complainant that he was threatened by two of tho accused persons with a dagger and a revolver, respectively. One of these witnesses Nabani, in his evidence, speaks of a conversation between the complainant on the one hand and the proprietors on the other, in the course of which Rabindra is alleged to have told Jahar Lal and Benoy Babu, 'Why are you getting so furious? You are speaking of money, I shall pay the money,' Then Jahar Babu stated, 'Why should you pay the money if only I ask you to do so?' and Rabindra said, 'you are my employer, I am doing your work, I shall have to pay the money if you ask me to do so,' and he stated further, you have asked me to deposit the money, I shall do so. If I am to do your work I must abide by what you say'; and then Jahar Babu stated, 'if you want to pay the money do it here and now.' Then Rabindra said where he would get the money at that time and as that place and Jahar Babu suggested that Rabindra could bring ornaments from his house and make payments then and there and that Jahar. Babu stated futher that Rabindra could give a written document in case he failed to pay the money then and there and Rabindra replied that he had nothing to write in the matter. Then Jahar Babu and Benoy Babu or both or either of them pressed Rabindra to come to a decision on the spot and they insisted that Rabindra must do something then and there. The fact that neither Satyaban nor Nabani speaks of any threat by any of the opposite parties, to Rabindra at the point of a dagger or a revolver and that neither of them speaks of any durwan being present either inside or just outside the room would at once go to show that probably there is a good deal of embellishment in Rabindra's story. The learned Judge says that although there is no corroborating of Rabindra's evidence on this point Rabindra's evidence itself may furnish prima facie materials for the issue of processes against the accused petitioners. In other words, although the learned Magistrate felt disinclined on the examination of the complainant on oath to issue processes without further scrutiny of his case and although on judicial enquiry it transpired that there was no evidence to corroborate him on this point and the learned enquiring Magistrate as well as the Magistrate who considered the enquiring Magistrate's report and the arguments advanced on behalf of the complainant by his lawyer could not persuade themselves to issue processes against the petitioners, the learned Judge by a mere stroke of the pen got rid of that disinclination on the part of the Magistrate who heard the witnesses and the Magistrate who acted on the report of the enquiring Magistrate after hearing the lawyer for the complainant by merely saying that Rabindra's evidence furnishes enough prima facie materials for the issue of processes. The question that now crises is whether the learned Judge in exercise of his revisional powers is entitled to do so. The points on which Rabindra's statement is uncorroborated by his own witnesses Satyaban and Nabani are first, the threatening of Rabindra by two of the petitioners at the point of a revolver and a dagger and, secondly, the presence of two durwans. These two are both of vital importance in connection with the allegations of extortion and wrongful confinement and if they cannot be accepted because Rabindra's own witnesses are silent thereon, a good deal of the foundation of Rabindra's charges against the petitioners is bound to be knocked out and then the question to be considered would be how far the residue of the evidence, were it fully accepted, would go to make out a prima facie case against the petitioners.

(2.) BEFORE proceeding to deal with this question, it is necessary first of all to dispose of the question whether in exercise of his revisional jurisdiction the learned Judge is entitled to substitute his own conclusion on a question of fact for that of the Magistrate and, if so, in what circumstances. Section 435 (1) of the Code when it provides that the High Court or the Sessions Court may call for and examine the records of any proceeding before an inferior Criminal Court 'for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order' prescribes the limits of the revisional jurisdiction. Section 436 which deals with the revision of orders of dismissal of complaints or of discharge of accused persons opens with the words 'On examining any record under Section 435 or otherwise' and empowers the High Court and the Sessions Court to order further enquiry. It is noticeable that in the case of the dismissal of a complaint or of the discharge of accused persons, where further inquiry is called for, this may be decided by the Sessions Judge himself without a reference under Section 438. The question arises what is the true scope of the Court's jurisdiction under Section 436 of the Code of Criminal Procedure. When the orders challenged under this section are passed without any evidence, the revising Court has to satisfy itself if on the materials before the Court, the petition of complaint, the initial statement of the complainanb and the report, if any, of an inquiry in the case of a dismissal of the complaint and the same and other materials in the case of an order of discharge, make out a case where further inquiry is called for. In a case, however, where there has been a judicial inquiry into a complaint, and all the evidence tendered by the complainant has been taken, there is hardly any occasion for further inquiry except when an essential point has been left obscure by the evidence adduced. What then are the limits of the jurisdiction of the revising Judge under Section 436 of the Code of Criminal Procedure? The section, as already stated opens with the words 'On examining any record under Section 435 or otherwise'. These opening words indicate that the exercise of the powers under Section 436 may be occasioned by an examination under Section 4 -35 or by any other fact. When it is occasioned by the first the scope of the revisional powers must necessarily be the same as under Section 435. If that is so, it follows that if it is occasioned otherwise, the scope of the revisional powers cannot be more or less than those when it is occasioned by an examination under Section 435. In other words, the revising Judge has, whether acting under Sections 435 or 436, to satisfy himself as to the correctness, legality or propriety of a finding or order. The question of the Magistrate's order being illegal does not arise in this case. What the learned Judge, therefore, had to satisfy himself about in this case was whether the Magistrate's finding and his order were correct and proper. Any finding which is correct on the evidence must necessarily be held to be proper and the order of dismissal which follows the finding must be held to be both correct and proper if the finding on which it is based is itself correct and proper. No finding can be said to be either correct or proper when the materials on which it is based cannot possibly lead any reasonable man to arrive at that finding and in such a case, it will be open to the revisional Court to set it aside and to replace it by what according to it would be the legitimate finding on the evidence. When, however, the materials are such that a reasonable man might cogently take either of two views thereon, then either of the views has to be held to be correct or proper or, in other words, neither view in such a case may be said to be either incorrect or improper. In such a case, therefore, the revisional Court entitled to interfere only in the event of the incorrectness or impropriety of a finding or order must be held to be without the power of interference.

(3.) NOW , if the complainant's story that he was threatened by two of the petitioners at the point of a revolver and a dagger and that there were two durwans there be discarded as it must, because Nabani and Satyaban do not support these statements, there is really nothing to indicate that the complainant was kept confined in the room against his will. There is not even a hint in the complainant's evidence that his freedom of movement was in any way obstructed. The tone of the conversation between the complainant and one of the petitioners, as reported by Nabani, hardly suggests the complainant having been frightened in any way. There is thus no case under Section 342 of the Indian Penal Code at all.