KAILASHPATI MISHRA Vs. NAND LAL AHIR

JUDGEMENT

(1.) This is an appeal against an order passed in a proceeding under Section 476 of the Code of Criminal Procedure directing that a complaint for the prosecution of Kailashpati Mishra (appellant No. 1) under Section 211, Indian Penal Code, and another for the prosecution of all the appellants Nos. 1 to 7 under Section 193, Indian penal Code, mall be filed before the Sub-divisional Officer, Arrah Sadar.

(2.) The proceeding arose out of Sessions Trial No. 42 of 1950 disposed of by the 2nd Assistant Sessions Judge, Arrah, by his judgment dated the 8th July, 1950. The appellants appeared as prosecution witnesses in that Sessions trial, and the case had been started in consequence of a written report given to the police by Kailashpati, the appellant No. 1. The occurrence was said to have taken place on the 21st February, 1950, at about midday, while Jadubans Mishra (appellant No. 4) had come to Arran in connection with some case. The case had been investigated by the Sub-Inspector who appeared as prosecution witness No, 9 at the trial, and a charge-sheet was submitted by him. A charge under Section 436, Indian Penal Code, had also been framed against one of the accused that is Lalmohar Ahir. So the Magistrate committed the case to the Court of Session. The learned Assistant Sessions Judge, to whom the case had been sent tor disposal, found that the entire case and the evidence in support of it were false. In his judgment, he has observed: "I can only say that not only the evidence appears to be unreliable, out every word of what has been said is absolutely false". He has further found, "I think it is fit case in which the complainant and the witnesses should be proceeded against for false information and perjury."

(3.) It appears that an application under Section 476, Criminal P. C., was thereafter rued by the persons accused in the Sessions trial for the prosecution of the appellants for launching a false case and giving false evidence in support of the same. On the 25th July, 1950, the 2nd Assistant Sessions Judge passed the Order: "Heard. Admit. Issue notice to the opposite parties to show cause as to why the application should not be allowed", Sometime thereafter, the Court of the 2nd Assistant Sessions Judge, Arrah, was abolished. The case was, therefore, withdrawn by the Sessions Judge and transferred to the file of the 1st Assistant Sessions Judge, Arrah, for disposal, on a report given by the 1st Assistant Sessions Judge, the case was again recalled to the file of the Sessions Judge. The learned Sessions Judge, after an inquiry into the case, allowed the application giving the direction as stated above. He has as well come to the same conclusion, as the learned Assistant sessions Judge, that there was no reliable evidence on the record and has further found that the findings given by the learned Assistant Sessions Judge were correct. The grounds given by the learned Sessions Judge for giving the aforesaid findings are, (1) that there was no motive for the accused persons to make a sudden raid on the house of Jaduban Mishra on the 21st February, 1950, at about midday; (2) that there was inherent improbability in the prosecution case, as the mob having come with lathis and bhalas, could not have taken to their heels when Shripati Mishra (appellant No. 3) was said to have come out of his house and chased the mob; (3) that it was equally improbable that the members of the said mob should have set on fire only the straw thatched baithaka of Jadubans Mishra (appellant No, 4) and not his residential house, if they really had any intention to cause any damage to him by fire; and (4) that the investigation made by the Sub-Inspector of Police did not lend any material support to the prosecution version of the alleged occurrence,