NAND KUMAR SINHA Vs. EMPEROR

JUDGEMENT

(1.) The petitioner is an accused person who is being prosecuted for an alleged offence under Section 193 read with 6. 116, I.P.C., that is to say for abetment of an offence which was not in fact committed. The allegation is that during the pendency of commitment proceedings arising out of a dacoity at Budauli, he instigated two persons, Sitaram Halwai and Ragho Dhanuk, to give false evidence before the Subdivisional Officer in connexion with the identification of the accused persons for whom the present petitioner was acting as pleader. The contentions of the petitioner are that the case against him is false. It is suggested that the Subdivisional Officer who made the complaint under Section 476 was moved by personal animus against the petitioner, that the proceedings were bad for want of preliminary inquiry before directing a complaint, that it is not desirable in the interest of justice that the alleged offence should be tried out, that the proceedings are bad for want of definite findings by the Subdivisional Officer and by the Sessions Judge on appeal, that a prosecution was required in the interest of justice. Mr. Manohar Lal also suggested that if a complaint was to be filed, the proper person to present it was not the Subdivisional Officer who held the commitment proceedings but the Assistant Sessions Judge who held the trial.

(2.) Mr. Manohar Lal for the petitioner has presented to me an historical review of the facts on which the suggestions against the Subdivisional Officer are based. It is said that the dacoity took place on 26 July 1935. A test identification was held in September 1935 before a Subdeputy Magistrate. The petitioner who acted for some of the accused as pleader presented a petition to the Subdeputy Magistrate who held the test identification making certain allegations against the Sub- Inspector, Rampirit Pande, and suggesting that he was tutoring witnesses as to the identification. The Subdeputy Magistrate referred the matter to the Subdivisional Magistrate to whom on 6 September 1935 the petitioner presented another petition on behalf of the accused with similar allegations. Other suspects presented another similar petition on 9 September 1935, allegingthat by intimidation and coercion the police are fabricating evidence. Other accused persons presented a similar petition on 17 September and two accused persons, Kamli Singh and Ramji Potdar, presented affidavits on 18 September 1935, in support of the above allegations. Another accused, Jadunandan Rai, filed a regular complaint on 20 September 1935, alleging that on 22 August, 1935 he had been assaulted by the Sub-Inspector in order to extort a concession. Again, after submission of the charge-sheet on 4 November 1935, the petitioner, on behalf of the accused persons, presented a petition that a test identification by all the witnesses might be held at one time as the Sub-Inspector was trying to get witnesses tutored to make false identifications.

(3.) There is no material before me to judge whether any of these allegations were made in good faith or were not. On 27 November 1935, one of the prosecution witnesses, Sitaram Halwai, swore an affidavit before the Subdivisional Officer of Beguserai that he had been called through Biso Singh to the petitioner at the latter's shoe-shop and had been asked by the petitioner not to identify and to make wrong identifications and to say that he had been beaten by the Sub-Inspector. Ragho Dhanuk is named in this affidavit as having been present with Sitaram Halwai. No immediate action was taken by the Subdivisional Officer on this affidavit. Ragho Dhanuk in the course of his examination in the commitment proceedings made a similar statement. On 2 December, 1935, the commitment proceedings in the Court of the Committing Magistrate ended. Of the 16 accused, 10 were committed to sessions and 6 were discharged. The trial ended on 12th March 1936 in the conviction of the accused by the Assistant Sessions Judge. An appeal to the High Court was disposed of in June 1936.