EMPEROR Vs. PARASHRAM BHIKA

JUDGEMENT

(1.) This revision application is presented on behalf of two persons who have been discharged by the Magistrate, the Sessions Judge having subsequently set aside the order of discharge and having directed under Section 437 of the Criminal Procedure Code that they should be committed for trial to the Sessions Court along with three other persons on charges of dacoity, wrongful confinement and other offences. The case involves a question of principle of some importance.

(2.) The allegations of the complainant in the Magistrate's Court were that he bad filed a civil suit against Jaffar Alli, accused No. 1, and that while that suit was pending, Jaffar Alli and two other persons, accused Nos. 2 and 3, had come to his house, had overpowered him and thrown him on the ground and had robbed him of an account book, which was required in connection with the civil suit. Accused No. 3 had then run away to a motor car which was waiting about sixty paces off, but the complainant pursued him and when they got to the motorcar in which accused Nos. 4 and 5, two police constables who are the applicants in this revision application, were sitting, there was a struggle; for the account book. Accused Nos. 4 and 5 snatched the book, tore out some pages and gave some to accused No. 1 and some to accused No. 2. After that accused No. 2 went away in the motor car and the complainant was arrested by accused Nos. 4 and 5 and forcibly taken to the police station. The complainant alleged, therefore, that the five accused had committed offences punishable under Sections 895, 323, 451, 342 and 320.

(3.) The Magistrate recorded all the evidence that was offered on behalf of the prosecution and he came to the conclusion that the complainant's case as against accused NOS. 4 and 5 was not credible. He pointed out in his judgment that the complainant's story that accused Nos. 4 and 5 were sitting in the motor car was not supported except by one witness, Exhibit 13, and that witness the Magistrate disbelieved, because the description he gave of what happened during the struggle for the account book at the motor car did not tally with the evidence of the complainant or the other witnesses. There were three other witnesses, Nos. 9, 10 and 11, none of whom stated that accused Nos. 4 and 5 were sitting in the motor car. Moreover the complainant and his witnesses except No. 13 stated that accused No. 1 was one of the persons taking part in the struggle for the book, but witness No. 13 said that he never saw accused No. 1 there at all. The learned Magistrate also pointed out that there was no evidence at all to prove the alleged conspiracy between accused Nos. 4 and 5 and the other accused. The record of the case has been placed before us and it appears to be a fact that there is not. an atom of evidence of any kind to show any connection between these two constables and the other accused, so that the alleged conspiracy could only be a matter of inference from what accused Nos. 4 and 5 did on the occasion in question. As to that, as I have shown, the evidence was thoroughly discrepant. The explanation which these accused gave was that they were off duty and in plain clothes at the time and were sitting in a tea shop. They saw these people struggling in the road and making a disturbance and therefore they arrested the complainant and accused No. 1 and took them both to the police station. After discussing the evidence at some length the Magistrate recorded findings accordingly that he was "inclined to believe in the explanation of the accused" and that there was "no evidence of the alleged conspiracy on the part of accused Nos. 4 and 5 to help accused Nos. 1, 2 and 3." In his view what had happened was that accused Nos. 4 and 5 "happened to be there, and seeing the disturbance of the peace on the main road, they intervened, although they were not on duty, and removed the quarrelling parties to the police station." Accordingly he discharged them, purporting to act under Section 253 of the Criminal Procedure Code, and proceeded to try the rest of the accused.