(SHEIKH) BIROO SARDAR Vs. YCARIFF

JUDGEMENT

(1.) This is a Reference made to us by the Chief Presidency Magistrate under the provisions of Section 433, Cr. P.C.

(2.) In November of last year one Biroo Sardar, a Cooly Sardar, complained before the Chief Presidency Magistrate that through the instrumentality of Y. C. Ariff and A. Shustry a revolver and three live cartridges were planted in the house in which ho resides on the 6 September, 1923, and that in consequence he was arrested. The complainant suggests that this was done because he had refused to join a Union of Stevedore coolies which the accused had started and because he had been instrumental in getting some Sardars, who were members of the Union, bound down under the provisions of the Cr. P.C. The Chief Presidency Magistrate examined the complainant and sent the complaint to a C. I. D. Officer for enquiry and report and having seen the report and connected papers, and the papers in a case against one Shaikh Darbari against whom a charge under Section 193, Indian Penal Code, has been framed of fabricating false evidence by planting the revolver, came to the conclusion that there was evidence which if believed after being given in Court would make out a prima facie case of conspiracy to fabricate false evidence to plant a revolver on the complainant. He accordingly summoned Ariff and Shustry under Secs.120-B, 193,182 and 211, Indian Indian Penal Code. The matter proceeded and witnesses were examined for the prosecution and on the 21 February 1924 the Chief Presidency Magistrate framed charges against the accused under Secs.193/120-B, Indian Penal Code. It is conceded that by virtue of the provisions of Section 196-A, Cr. P.C. the Chief Presidency Magistrate could not take cognizance of an offence punishable under Section 120-B, Indian Penal Code, as the Local Government had not by an order in writing consented to the initiation, of the proceedings and he was not empowered in this behalf by the Local Government. As soon as charges under Section 120-B, Indian Penal Code, read with Section 193, Indian Penal Code were framed against Ariff and Shustry and Darbari and against Darbari under Section 193 a petition was presented claiming that as no sanction from Government had been granted in respect of Section 120-B. Ariff and Shustry were entitled to an acquittal. The Chief Presidency Magistrate then proposed to draw up a fresh charge against them under Section 193 read with Section 109, Indian Penal Code, and after hearing arguments has referred the question of law as to whether he can do so to this Court under the provisions of Section 432, Cr. P.C.

(3.) The Chief Presidency Magistrate contends that the facts before him disclose a prima facie case of an offence under Secs.193, 109, Indian Penal Code, and that notwithstanding the fact that he summoned the accused under the sections above mentioned he can now alter the charges which he has framed under the sections above mentioned to a charge under Sections 193-109, Indian Penal Code for which no consent of the Local Government is necessary. He says that he took cognizance not of the offences named in the summons but of the offences alleged in the complaint whatever they might be made out to be after the accused were summoned.