KASEM MOLLA Vs. KING-EMPEROR

JUDGEMENT

(1.) The four appellants before us were tried before the Sessions Judge of Faridpur and a jury on various charges of offences committed in the course of a riot in which they were accused of having taken part. The first two appellants were sentenced to 7 years, rigorous imprisonment each under Section 301/149 Indian Penal Code and two years rigorous imprisonment each under Section 324 Indian Penal Code, the sentences to run concurrently, The third appellant was sentenced to 5 years rigorous imprisonment under S.S04/ 149, and no separate sentence was passed on his conviction under Section 147, I.P.C. The fourth appellant was sentenced to two years rigorous imprisonment under Section 147 I.P.C.

(2.) As regards the appellant Basir Sardar a special point is taken, and that is that his conviction should be set aside on the ground of illegality in the proceedings before the committing Magistrate. Five persons were committed to the Court of Sessions in this case one of whom has been acquitted. The commitment proceedings commenced against four of these accused other than Basir Sardar, and on the 25 June 1924 ten prosecution witnesses were examined. The Magistrate directed that warrant should issue against Basir Sardar and he was produced before the Court on the 8 July. On that date three prosecution witnesses were examined in the presence of all the accused. On the 23 July two more prosecution witnesses were examined in the presence of all the accused and the charge was framed. On the 28th July the investigating police officer and the Sub-Deputy Magistrate who recorded the dying declaration were examined apparently under Section 219 Criminal P.C. It is contended that this procedure was contrary to the provisions of Section 208, Cr. P.C. In our opinion even if the provisions of that section were not strictly followed that would not be a sufficient ground for setting aside this conviction. No reported cases have been shown to us in which the conviction has been set aside on the ground of irregularity or illegality in the commitment. It is not shown that the appellant Basir has been in any way prejudiced. Even assuming that there has been such an irregularity or illegality in the proceeding as would justify us in quashing the commitment had such an application been made to us before the commencement of the trial we hold that we should not therefore be bound to hold that the conviction should be set aside. The Sessions Judge has jurisdiction to try a case which has been committed for trial to him, and if the trial is legally held we doubt if an irregularity in the commitment would vitiate the proceedings in the Sessions Court. In the case of Empress V/s. Sagambur [1882] 12 Cri.L.R. 120 it was held that when a person had been put on his trial and pleaded to the charge the commitment cannot be quashed, and we agree with that decision that it is too late to object to the commitment after the accused has pleaded to the charge before the Sessions Court. Taking this view it is not necessary to decide whether there was an illegality in the commitment but we may state that we have some doubts on this point. Section 208 Criminal P.C. provides that the Magistrate shall when the accused is brought before him proceed to hear the complainant if any and take all such evidence as may be produced in support of the prosecution. It does not appear that in this case the Magistrate omitted to take any evidence which was produced in support of the prosecution of the accused Basir. The same objection was taken before the Sessions Judge and he overruled it on the ground that one or two prosecution witnesses who were examined in the presence of Basir named him in the committing Court as "being present in the dock and taking part in the riot."

(3.) It is urged that the Magistrate was in any case under this section bound to hear the complainant in the presence of the accused. But it is not clear that the word complainant in this section applies to the person who laid the first information. Section 250(3) of the Code draws a distinction between an informant, and a complainant. In Section 170 the words there used in the second clause "the complainant if any" indicate that the informant in a case which has been investigated by the police is not necessarily the complainant. Section 444 of the Code gives the definition of a complainant which would include the informant under Section 154, but that definition is a special definition limited to the use of that word in the preceding Section 443.