AFZALUR RAHMAN Vs. EMPEROR

JUDGEMENT

(1.) Afzalur Rahman had been convicted under Section 161, Indian Penal Code, and sentenced to six months rigorous imprisonment and a fine of Rs. 100, in default further rigorous imprisonment for four months. Jubraj Prasad has been convicted under Section 161, Indian Penal Code, and sentenced to 18 months rigorous imprisonment with a fine of Rs. 50, in default to further rigorous imprisonment for two months. S.A.M. Nasim has been convicted under Section 161, Indian Penal Code, and sentenced to two years rigorous imprisonment and a fine of Rs. 50, in default further rigorous imprisonment for two months. He has also been convicted under Section 220, Indian Penal Code, and sentenced to two years rigorous imprisonment. The substantive sentences of imprisonment passed on him are to run concurrently.

(2.) The case for the prosecution is that on 2 February, 1941, Excise Sub- Inspector Nasim asked for assistance from the senior Sub-Inspector of Phulparas police station to search the houses of people dealing with excisable substance. The junior Sub-Inspector Afzalur Rahman and the Assistat Sub-Inspector Jubraj with a constable were deputed for the purpose. On 3 February the police party left for village Chatrapatti Narahia. They searched the house of Jeswa Amat and recovered some Nepali ganja. As to what Jeswa Amat said was noted on the search-list and it amounted to this that the ganja belonged to Achhe Lal Sahu of Narahia who had given to him to keep. Achhe Lal Sahu was arrested by one of the constables but he denied the charge. The Excise Sub-Inspector ordered both Achhe Lal Sahu and Jeswa Amat to be tied with ropes. They were then taken to a village called Sakhua which is about a mile towards the east. At Sakhua Nandlal's house was searched. Achhe Lal's statement is that while at Sakhua he had sent for his brother Phagu Lal (P.W. 2) for assistance, but before Phagu's arrival Uchit Mandal (P.W. 9) of Raghunathpur happened to reach there on his way to a village called Nirmal. Uchit inquired about the cause of Achhe's arrest but Jubraj took Uchit aside and had some conversation. According to Uchit, Jubraj demanded Rs. 60 for the release of Achhe Lal. Uchit gave out that he did not think that Achhe Lal would be able to pay so much. By this time Phagu arrived and he made inquiries from the Excise Sub- Inspector. The Excise Sub-Inspector demanded Rs. 50. Even that amount was not agreed to by Phagu Lal. The Excise Sub-Inspector then said that he would agree to any amount fixed by Jubraj. Jubraj demanded Rs. 25 and this was paid by Phagu at Sakhua. Achhe Lal was then untied, but when he wanted to go away Afzalur Rahman said, according to the prosecution, that they should first go to the thana for some writing (likha parhi) and then they would be let off. From Sakhua they came to Phulparas police station and first reached the quarters of the junior Sub- Inspector Afzalur Rahman. The junior Sub-Inspector and Jubraj went away to the thana buildings, and when Phagu and Achhe Lal wanted to go Excise Sub- Inspector Nasim wanted another sum of Rs. 25 for he said the first sum of Rs. 25 was taken by the police. This led to a certain amount of bargaining and ultimately a sum of Rs. 12 was paid and then they were allowed to go away.

(3.) A case was instituted against Jaswa Amat which ended in his acquittal on 2nd April 1941 although according to the judgment we find the case had finished on 16 April 1941. An application for a certified copy of the judgment was made by Phagu on 10 May 1941 and the copy was ready for delivery on 20 May 1941. After this the next date of importance is the 26 May 1941 when a petition was drafted which was filed on 3 June 1941 before the Sub-divisional Magistrate of Madhubani. This petition is Ex. B and is in the nature of an application for sanction under Section 197, Criminal P.C., to prosecute the three appellants as well as the staff of the excise under Secs.342, 384 and 500, Indian Penal Code. The complainant however intimated to the Sub-Divisional Magistrate that he had applied for sanction to the Chief Secretary. From a letter of the District Magistrate to the complainant, dated 22 July, 1941 it appears that he was asked to file a complaint in the ordinary course and that the question of sanctioning the prosecution of the public servants would be considered later on. The petition of complaint was then drafted on 1 August 1941 and filed on 4 August 1941. There was a preliminary inquiry by a Magistrate and then the three appellants and the Assistant Sub-Inspector of Excise were summoned to take trial. After the inquiry before commitment the accused were committed to the Court of Session on 15 January 1942 and the trial was held with the aid of assessors as noted above.