DAWA FAQIR SINGH Vs. EMPEROR

JUDGEMENT

(1.) The appellant was convicted and sentenced on 28 May 1936, by the Special Magistrate of the District of Lahore under S. 120-B (conspiracy) and S. 471 (using as genuine a forged document known to be forged) of the Indian Penal Code. The sentence was a sentence of rigorous imprisonment for five years. The conviction and sentence were confirmed on appeal. The ground of this appeal is that the Special Magistrate had no jurisdiction to try the case, since it came within the provision of S. 337, Criminal P. C., and could only be lawfully tried in the circumstances of the case by the High Court or Court of Session. This objection was over ruled by a decision of the High Court of Lahore and in effect it is from that decision that this appeal is brought. The facts which are so far as relevant not in dispute may be shortly stated. The appellant, an advocate of the High Court, acted as counsel for G.S. Kochar, who was plaintiff in a suit in the Court of the Senior Subordinate Judge based on a promissory note. The plaintiff succeeded against two of the defendants, both before the Subordinate Judge and on appeal. Meantime complaints had been made by Durga Das, the defendant, against whom the case was dismissed, that his signature to the promissory note had been forged. On 14th May 1928, the District Magistrate, acting on a police report, directed the issue of warrants against six persons, including the appellant and two other persons Sain Dass and Vishwa Mitter. On 3 June 1928, the District Magistrate had brought before him Sain Dass, who was then in custody and read over to him a document which had been enclosed with a letter sent to him by the Local Government. The letter, which was in answer to a communication from the District Magistrate on the question of obtaining evidence from one or more of the accused persons, was in the following terms:

(2.) Mr. Puckle held the offices both of District Magistrate and Deputy Commissioner. The proceedings in the case were very delayed and protracted. Eventually, after various protests and objections by the appellant, the Public Prosecutor applied to Mr. Luthra, the Special Magistrate, to whom the case had been transferred and who was vested with the powers under S. 30 of the Code, for permission to withdraw from the prosecution of Sain Dass. The Special Magistrate by order dated 4 July 1932, allowed the Public Prosecutor to withdraw the case under S. 494, Criminal P. C. The appellant objected to this order on various grounds, in particular that the case could only properly proceed under S. 337, whereas the prosecution were seeking to have the case tried otherwise than before the Sessions Judge as S. 337 would require. Sain Dass was thereupon called on 9 March 1933, as a witness for the prosecution before the Magistrate, Mr. Luthra. On 7 April 1933, another of the accused, Vishwa Mitter, was called before an Additional District Magistrate at Lahore, and a conditional promise of pardon was read over to him by the Magistrate, the same procedure being followed as in the case of Sain Dass. Vishwa Witter accepted the offer. An application was then made to the special Magistrate, Mr. Luthra, for leave to withdraw the case against Vishwa Mitter under S.494 of the Code. Objection was made by the appellant on much the same grounds as in the case of Sain Dass, but the Magistrate made the order and in due course Vishwa Mitter gave evidence before the Magistrate.

(3.) On 26 May 1936 Mr. Lauthra, having completed the prolonged proceedings, gave judgment acquitting two of the accused, but finding the appellant and one other of the accused guilty under Ss.120.B, 467 and 471, Indian Penal Code, and imposing on the appellant and the other accused who was found guilty, a sentence of rigorous imprisonment for five years. This sentence was confirmed on appeal with a variation in respect of the conviction. During the proceedings it was clear that the Special Magistrate did not intend to commit the accused to the Sessions Court as required by S. 337. Not only did he sanction the discharge of Sain Dass and Vishwa Mitter under S. 494, but he framed charges against the appellant before the examination of the witnesses was completed, under S.254, instead of proceeding under Ss. 206,210, which apply to committal for trial. The appellant objected to this course, claiming that he was entitled to be committed for trial under S. 337, but his objections were overruled eventually by a Divisional Bench of the High Court consisting of Bhide and Coldstream JJ., who on 29 October 1934, delivered judgment, rejecting the objection with the result that the trial continued and was concluded before the Magistrate as already stated.