EMPEROR Vs. WAJID HUSSAIN

JUDGEMENT

(1.) Eleven persons were convicted by the Additional Sessions Judge of Gronda of various offences falling under Secs.195, 196, 211 and 218, Indian Penal Code. They appealed to the Court of the Judicial Commissioner of Oudh. The appeal was heard before the Judicial Commissioner and the Additional, Judicial Commissioner sitting together. There was difference of opinion between the members of the Court regarding the guilt of seven of the appellants, viz., Wajid Husain, Muhammad Hashim, Najab Ali, Ghaus Ali, Ram Kuber, Mata Din and Lachman. In consequence of this the learned Judicial Commissioner and the Additional Judicial Commissioner acting under Clause (b) of Section 9 of Act No. XIVof 1891, have jointly stated the question as to which they have differed, and have forwarded such statements with their respective opinions to this Court. The question on which the members of the Court differed is whether the accused who are constables should be acquitted on the ground that they acted under the orders of the Inspector and Sub-Inspectors. No definite orders, the reference proceeds to say, to the constables have been proved; but one of the learned members of that Court is disposed to think and the other holds definitely that it should be assumed in favour of the constables that they acted under the orders of the Inspector and the Sub-Inspectors.

(2.) The Judicial Commissioner was of opinion that all the accused proceeded to the hutti or but near the abadi of mauza Gokulpur with criminal intent, that it was proved that the constable Ghous Ali wrote out the original report made to the police knowing it to be false, that constable Wajid Husain prepared the special diary which followed upon the report in a manner which he knew to be incorrect, that after that Ghous Ali and Wajid Husain assisted the Inspector and the Sub- Inspector Wazir Khan to prepare the false statement which was made by the witness Shankar, and that the constable Lachhman also took part in this. He was disposed to hold that even if the constables acted under express orders from the Inspector and Sub-Inspectors, they did so knowing that these orders were unlawful, and, therefore, they were not bound to obey them, and are not protected by these orders from liability.

(3.) The learned Additional Judicial Commissioner, on the other hand, being of opinion that it was reasonable to hold that the constables may have proceeded to the hutti in ignorance of the plan devised by the inspector and Sub-Inspectors, that the prosecution had failed to prove that the constables set out to the kutti with criminal intention, that no other act is proved against them to show that they knew of the conspiracy before the arrests were made, they were as regards the subsequent acts protected by the orders of the Inspector under which it must be presumed that they acted.