SAID AHMAD Vs. KING-EMPEROR

JUDGEMENT

(1.) These two cases are connected and are based on two separate applications to this Court to exercise its power of revision under Section 439. It is not understood why the office should have entitled one a miscellaneous case and one a revision case. The facts which are necessary to explain these applications before me are these. On the 26 September, 1926. at 9 a.m. the Kotwal of Ghazipur, by name Ram Karan Singh, and Suraj Nath Singh, the Excise Inspector, having obtained a warrant to search the house of one Mohit Khan for illicit opium, proceeded to the block of building in which that house is situated and in which are said to be situated also the houses of Farrukhsher Khan and Mt. Amina Bibi. The Kotwal directed some constables to scale a wall. There is disagreement as to what wall it was or as to whose property was invaded thereby. A dispute arose in the house inside the block of building and Farrukhsher Khan was injured. The police instituted a case against Farrukhsher Khan and other persons for rioting and possession of opium and for causing hurt to the police officers. Subsequently Farrukhsher Khan filed a criminal complaint complaining against the police of house breaking and other offences, and later on Mt. Amina Bibi and two others filed a similar complaint. I may mention that I regard as immaterial the sections of the Indian Penal Code which these persons stated to be applicable to the offences complained of. Both these complaints against the police were entertained, after some further enquiry, by the Magistrate who had taken cognizance of the police complaint. The two cases against the officers were combined (so far as I can see very properly) in one case. The Magistrate heard the evidence for the prosecution and recorded the statements in explanation of the accused officers. He then framed charges but refused to frame a charge under Section 459, Indian Penal Code, namely, the offence designated as grievous hurt caused while committing house-trespass or house-breaking". The section in full is as follows: Whoever whilst committing lurking house trespass or house-breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person shall be punished with transportation for life or imprisonment of either description for a term which may extend to ten years and shall also, be liable to fine.

(2.) An offence under this section is triable exclusively by the Court of Sessions. In the criminal revision case before me, No. 169 of 1927, the application is that the High Court should direct a charge to be framed under this section and the case to be committed to the Court of Sessions. In the connected application No. 57 of 1927 the application is that, having done so, the High Court should also order the police case against the complainants to be committed to the Court of Sessions.

(3.) The question then is whether the evidence read along with the explanations of the accused, in the case against the police, justified and required a finding by the Magistrate that prima facie an offence under Section 459 had been committed If it did so, it is clear that the Magistrate should have committed to the Court of Sessions as he had no jurisdiction to try such an offence himself.