Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Revision No. 64 of 1967, decided on 28th April 1967.
S. 253‑Power of Magistrate to discharge accused‑To be exercised judicially after applying mind to materials and examining evidence carefully Courts not to base their findings on mere taking of judicial notice of papers not legally brought on record.
S. 439‑Revisional jurisdiction of High Court‑Not confined to questions of law alone‑High Court can also deal with questions of fact when findings of Courts below are unreasonable, perverse, against weight of evidence, or occasion serious injustice or cause failure of substantial justice:
The High Court in exercise of its revisional jurisdiction can, in appropriate cases go into facts and disturb the findings of facts, as for example where the subordinate Courts have wrongly applied the law and procedure or not applied the correct principles relating to the appraisement of evidence or ignored the important pieces of evidence altogether. Normally though a revisional Court should not take upon itself the task of weighing the evidence afresh, but its power is not confined to question of law alone and in a fit case the High Court can also deal with questions of facts where the findings of the Courts below are unreasonable perverse and absolutely against the weight of evidence, occasioning serious injustice or a failure of substantial justice in the case.
Thus the power of the High Court under section 439 of the Code of Criminal Procedure is unrestricted and testing a case in the yard‑stick of the established principles and even treating the order of discharge as that of an order of acquittal or applying the principles governing the acceptance of appeal from the order of acquittal the High Court exercising revisional power can in a fit case set aside the order of discharge when the findings are found to be absolutely unreasonable and perverse occasioning a failure of justice. It is true that under section 436 of the Code of Criminal Procedure the Sessions Judge has concurrent power with the High Court to direct further enquiry but the power of the High Court under section 439 of the Code of Criminal Procedure is very wide and it can revise the proceedings or orders passed by any inferior Criminal Court in exercise of its revisional jurisdiction in a proper case.
Md. Samiullah Khan and another v. The State P L D 1963 S C 237; Feroze Khan v. Captain Ghulam Nabi Khan and another P L D 1966 S C 424; Sheikh Muhammad Amin v. The Superintendent of Police, Jhang P L D 1960 Lah. 684 and Mst. Saeeda Begum and others v. The State P L D 1960 Lah.1005 rel.
A. S. Khan, S. M. Nurul Alam and M. A. Matin for Petitioner.
P. C. Bose, Nasiruddin Choudhury and B. K. Das for the Opposite‑party.
‑This application in revision has been preferred by the complainant and is directed against an order of discharge of the accused opposite‑party under section 253(1) of the Code of Criminal Procedure.
The complainant, Dr. Jamshed Bakth is an M. B. doctor and is the Chief Medical Officer, Sylhet District Medical Association and also a private medical practitioner, earning about R9. 2,500 per month. The accused Aminur Rashid Choudhury is the Editor, Printer and Publisher of the Weekly Bengali paper "Jugaveri" and the English Journal "Eastern Herald" at Sylhet. Some misunderstanding grew between the complainant and the accused over the affairs of the Local Red‑cross Society and their relationship was strained for a considerable period.
The accused opposite‑party published previously some defamatory news in his two papers for which a separate case (being case No. 1971 of 1965) was instituted by the complainant and the accused was summoned under section 500, of the Pakistan Penal Code. During the pendency of the above case the accused again published a news item against the complainant in the "Jagaveri" on 29‑9‑65 (Exh. 1) under the caption "Swami Banam Dharmpita" and in the "Eastern Herald" on 2‑10‑65 (Exh. 3) under the caption "Husband v. Sworn father" which were alleged to be false, fictitious and defamatory, just to lower down the complainant in the eye of the public. The accused published in the said news item (Exhs. 1 and 3) that one Ajman Ali started a criminal case against the complainant under sections 344, 384 and 494 of the Pakistan Penal Code alleging inter alia, that the complainant used to have illicit intercourse with Chow Bibi, wife of Ajman Ali against her will after confining tier in his house and that he was a man of loose morals.
The complainant, in the circumstances, instituted a second case, that is the present case (being Cage No. 1695 of 1965) on 25‑10‑65 asserting that the allegations in Ajman Ali's petition are absolutely false and baseless that Ajman Ali has been used as an instrument by the accused, that Ajman Ali in his initial deposition on solemn affirmation did not state to the Sub -Divisional Magistrate that the complainant had or had been having illicit connection with his wife and that the accused published those imaginary allegations in the news items (Exhs. 1 and 3) with intent to harm and defame the complainant and those unfair publications have lowered him down in the public estimation.
It has also been alleged in the petition of complaint that the accused similarly published another news item against the complainant with an unfair motive in "Jugaveri" dated 30‑6‑65 (Exh. 5) to the effect that the complainant travelled from Sylhet to Dacca in Inter Class on 26‑6‑65 though he actually travelled with his wife in an air‑conditioned first class compartment to Dacca and that publication also defamed and lowered him down in the eye of the public.
The Sub‑Divisional Magistrate after examining .the com plainant issued summons against the accused under section 500 of the Pakistan Penal Code. The accused appeared and the case was transferred to Mr. M. M. Huq, Magistrate first class for disposal. The learned Magistrate examined 5 P. Ws. and adjourned the case to 16‑4‑66 for consideration of evidence and framing of charges, if any.
It thus appears from the order sheet that the case was fixed on 16‑4‑66 for framing of charge if any. The stage of taking defence did not arise then and no plea of the accused was recorded. But the learned Magistrate instead of framing any charge under section 254 of the Code of Criminal Procedure discharged the accused under section 253(1) of the Code without examining him thereunder by his order dated 25‑4‑66. Against the said order of discharge the learned Sessions Judge was moved under section 436 of the Code of Criminal Procedure but the Additional Sessions Judge, second Court, Sylhet rejected the petition. The complainant, thereupon moved this . Court and obtained this Rule.
The learned Magistrate while dealing with the question of framing of charge, took judicial notice of a petition of com plaint, filed by the said Ajman Ali against the complainant, Dr. Jamshed Bakth, and held that the accused reproduced and published in the impugned news items (Exhs. 1 and 3) exactly the same allegations which Ajman Ali made in his complaint, and that the complainant challenging the publication of the news item, Exh. 5 could not produce any evidence to prove that he travelled on 26‑6‑65 with his wife in an air conditioned first class compartment from Sylhet to Dacca and hence he discharged the accused for want of prima facie evidence.
The learned Additional Sessions Judge rejected the complainant's petition with the findings that the initial deposition of Ajman Ali substantially tallies with the allegations made in his petition of complaint, that the accused published the verbatim representation of the petition of complaint by Ajman Ali and that the accused published a news item of the Court's proceedings and it is not a defamation to publish a substantially true report of the proceedings of a Court of Justice or of the result of any such proceedings. The learned Judge, however, did not consider or discuss in his judgment at all the other part of the prosecution case nor said a single word as to whether the publication of the news item (Exh. 5) had any basis or not.
Mr. A. Salam Khan, learned Advocate for the petitioner has placed the two judgments and other materials before us and submitted that there are sufficient evidence to make out a prima facie case that the learned Magistrate did not at all discuss the evidence in the judgment nor applied the correct principles relating to appraisement of evidence and that he ignored important evidence on record and based his order on some inadmissible papers which were not legally proved. The learned Advocate also contended that in law even a distorted garbled and insinuating version of a fact containing an innuendo may attract the application of sections 500 and 501 of the Pakistan Penal Code and that on clear misconception of law case has been made out.
The prosecution examined 5 witnesses in the case and produced a number of documents such as, the copy of "Jugaveri" dated 29‑5‑65 (Exh. 1), the original affidavit of Chutu Bibi (Exh. 2) the copy of Eastern Herald dated 2‑10‑65 (Exh. 3), a certificate from the Station Master, Sylhet (Exh. 4), a copy of Jugaveri dated 30‑6‑65 (Exh. 5), the withdrawal petition in original filed on 7‑12‑65 by Ajman Ali (Exh. 6) and the initial deposition of Ajman Ali recorded by the Sub‑Divisional Magistrate (Exh. 7). But curiously enough, the learned Magistrate did not consider and discuss these materials at all in his order, though in this respect the procedure prescribed by sections 252, 253 and 254 of the Code of Criminal Procedure are that the Magistrate after taking the evidence of the complainant and his witnesses and examining the accused if necessary apply the law to the criminal acts find whether there is prima facie evidence to frame charge in the case. Section 253 of the Code no doubt gives power to the Magistrate to discharge the accused in the circumstances provided therein but he must exercise the power judicially after applying his mind to the materials and examining the evidence carefully.
The records show that there are good evidence to make out a prima facie case. In view of the order we propose to pass in the case though we do not like to go into detailed discussion of evidence here yet it cannot be said that there is want of prima facie evidence in the case to frame a charge against the accused. It is unfortunate that the learned Magistrate while discharging the accused under section 253 (1) of Code of Criminal Procedure did not consider in his judgment the evidence of P. Ws. and the Exhs. referred to above which clearly make out a case. The order of discharge in the instant case in our opinion is not only unreasonable but is also hopelessly against the weight of evidence.
Another aspect of the case as it appears from Exh. 2 the affidavit in original dated 5‑10‑65 by Chutu Bibi and Exh. 6 the withdrawal petition in original dated 7‑12‑65 filed by Ajman Ali is that Ajman Ali filed a complaint before the Sub -Divisional Magistrate, Sylhet against the present complainant. The learned Magistrate examined the said Ajman Ali under section 200 of the Code of Criminal Procedure and recorded his initial statement (Exh. 7) but did not issue any process against the accused who is the complainant in the present case and instead sent the matter to the local police for enquiry. The said Ajman Ali failed to make out any case during enquiry and ultimately submitted the withdrawal petition (Exh. 6) with a prayer that he would not proceed with the case and in that withdrawal petition admitted that he brought the said complaint against Dr. Jamshed Bakth at the instigation of Mr. Aminur Rashid Choudhury by the latter's money. Ajman Ali in his initial deposition (Exh. 7) did not state to the Magistrate that Dr. Jamshed Bakth (the complainant) had or had been having illicit intercourse with his wife (Chutu Bibi). The said Chutu Bibi herself in her affidavit (Exh. 2) categorically denied the existence of any such illicit connection between herself and the complainant Dr. Jamshed Bakth. That being the position, it requires to be determined by the Court whether the publication of the news items (Exhs. 1 and 3) which are not denied, are fair publications of true reports or false, and concocted imputations published just to lower down the complainant in the estimation of the public.
It thus appears that the learned Magistrate in discharging the accused under section 253 (1) of the Code of Criminal Procedure did not apply the correct principle relating to the appraisement of evidence. On' the contrary, he took judicial notice of an inadmissible paper and on an erroneous view of the matter discharged the accused without caring to apply his mind judicially to the materials on records. It is not open to a Court to base its finding on the assumption that it took judicial notice of a certain paper which has not been legally brought on record. The complaint of Ajman Ali has not been proved in this case nor marked as an Exh. Without formal proof how the contents of that petition of complaint of Ajman Ali can go into evidence in this case We are at a loss to see how the learned Magistrate has taken judicial notice of such a paper which has got no legal existence and this in our opinion, has definitely caused prejudice and a failure of justice in the matter.
Exh. 4 is a certificate of the local Station Master. The learned Magistrate has himself observed that Exh. 4 has not been proved in Court. If it is not proved and it cannot go into evidence, how the learned Magistrate can accept it in evidence and then use it or refer to it. The order of discharge thus based on inadmissible papers is liable to be set aside.
The records further show that the finding of the learned Additional Sessions Judge that the initial deposition of Ajman Ali substantially tallies with the allegations made in his petition of complaint is absolutely fallacious. His silence as to the other aspect of the prosecution case in respect of the publication of the news items Exh. 5 indicates that he did not properly apply his mind to the materials of the case.
It is now well settled that the High Court in exercise of its revisional jurisdiction can, in appropriate cases go into fact and disturb the findings of facts, as for example where the subordinate Courts have wrongly applied the law and procedure or not applied the correct principles relating to the appraisement of evidence or ignored the important pieces of evidence altogether. Normally though a revisional Court should not tare upon itself the task of weighing the evidence afresh, but its power is not confined to question of law alone and in a fit case the High Court can also deal with questions of facts where the findings of the Courts below are unreasonable perverse and absolutely against the weight of evidence, occasioning serious injustice or a failure of substantial justice in the case. In this connection we may profitably refer to the case of Md. Samiullah Khan and another v. The State (PLD 1963 SC 237) where their Lordships of the Supreme Court observed as follows:‑
"The revisional jurisdiction of the High Court under section 439 is indeed wide and is not confined merely to errors of law. In the exercise of its revisional jurisdiction the High Court can even, in appropriate cases disturb the findings of fact as for example, where the subordinate Court has wrongly placed the onus of proof or not applied the correct principles relating to the appraisement of evidence or an important piece of evidence has been ignored."
The same view has again been expressed by the Supreme Court in the case of Feroze Khan v. Captain Ghulam Nabi Khan and another (PLD 1966 SC 424) where their Lordships observed as follows:‑
"The revisional jurisdiction of the High Court under section 439 of the Code of Criminal Procedure is very wide rind indeed unlimited in law and is not confined to mere correction of errors of law. In appropriate cases even findings of fact could be disturbed in revision. This would be possible for instance where the subordinate Court had wrongly allocated the onus of proof, in not applying the correct principles, relating to the appraisal of evidence or some important piece of evidence had been ignored.
Mr. Promode Chandra Bose learned Advocate appearing for the opposite‑party has, submitted that a revisional Court should not ordinarily interfere with an order of discharge and that on facts both the Courts below having come to a concurrent finding the High Court exercising revisional power cannot disturb the order of discharge passed under section 253 (1) of the Code of Criminal Procedure. In support of this contention the learned Advocate has referred to three decisions namely the case of Emperor v. Jafar Khan and others (36 Cr. LJ 907) the case of State v. Fazar Ali and others (9 D L R 77) and the case of Noor Muhammad and others v. Crown (5 D L R 5).
The first two cases cited above did not deal with any question of discharge and as such, are not exactly on the point. But the principles enunciated in those cases with regard to the scope of the powers of High Court under the revisional jurisdiction are not disputed and these principles with which we respectfully agree rather support the view we have already taken above. In the case reported in 5 D L R 5 the learned single Judge observed as follows:‑
"On the second question whether the; order of the learned Sessions Judge was based on material facts patent on the record, it may be judged in the light of certain accepted tests for setting aside the order discharge. In my opinion the principles governing the acceptance of an appeal from the order of acquittal should be applied when further enquiry is ordered in the case of an accused who has been discharged. In a decision reported in 53 I C 817 Mr. Justice S. Aiyar expressed himself in the following words:‑
The Revisional Court has only to see whether the evidence is of such a character that is possible to come to only one conclusion upon it, viz. that the accused has been guilty and that there has been miscarriage of justice consequent upon the one‑sided or perverse view taken by the trial Magistrate."
Again in a ruling reported in 138 I C 142 Raza Justice was of opinion that unless evidence is ignored or overlooked by a Magistrate or that his view was palpably unreasonable the order of discharge could not be disturbed in revision.
"From the above recitals, it does not follow that the High Court has no power to revise an order of discharge but on the contrary, it shows that revisional Court can interfere with an order of discharge when the finding was palpably unreasonable and where the evidence was ignored or overlooked. In this connection, two other decisions‑one being the case of Sheikh Muhammad Amin v. The Superintendent of Police, Jhang (P L D 1960 Lah. 684) and another, the case of Mst. Saeeda Begum and others v. The State (PLD 1960 Lah. 1005) may also be referred to wherein it has been held that the Court which is asked to set aside an order of discharge, can do so if after examining the reasons for the discharge the Court is satisfied that they were not sound or that the finding of the Magistrate could not be sustained on the material already brought on the record or because the finding was perverse or foolish. The Supreme Court of Pakistan in the case of Abdur Rashid Khondkar v. Chandu Matbar and others (PLD 1964 SC 795) observed as follows:‑
"In revision the High Court may not reverse an acquittal but it may yet interfere with it in another way so as to ensure that justice is done. Consequently, the proper line of approach would appear to be not by stressing the unassailability or finality of the order of the Court below, but by considering whether the case as presented in its details and the supporting evidence had been fairly and fully appreciated by the Court below and its conclusions were reached in accordance with the basic principles governing the formation of a verdict adverse to an accused person. To say that "mis-appreciation of evidence" is never sufficient ground for interfering with an acquittal is to ignore the existence of degrees of mis-appreciation, from the very grossest form exhibiting perversity to the mere ignoring of certain side aspects arising out of a piece of evidence."
Thus the power of the High Court under section 439, of the Code of Criminal Procedure is unrestricted and testing a case in the yard‑stick of the above principles and even treating the order of discharge as that of an order of acquittal or applying the principles governing the acceptance of appeal from the order of acquittal the High Court exercising revisional power can in a fit case set aside the order of discharge when the findings are found to be absolutely unreasonable and perverse occasioning a failure of justice. It is true that under section 436 of the Code of Criminal Procedure the Sessions Judge has concurrent power with the High Court to direct further enquired but the power of the High Court under section 439 of the Code of Criminal Procedure is very wide and it can revise the proceedings or orders passed by any inferior Criminal Court in exercise of its revisional jurisdiction in a proper case. Hence we cannot accept the contention raised above.
Mr. Bose has lastly contended that the accused published the verbatim representation of the petition of complaint of Ajman Ali that in view of the 4th except on to section 459 of the Pakistan Penal Code it is not a defamation to publish a substantially true report of the proceeding of a Court of Justice or of the result of any such proceeding and that the proceedings of Court include the said complaint. In this connection, the learned Advocate has drawn our attention to the case of Raja Veni Madho Prasad Singh v. M. Wajid Ali (A I R 1937 All. 90) where Bennet, J. held:
"The words "Judicial proceedings" include the whole proceedings from filing of the complaint until the decision of the Court and under section 202, Criminal P. C. an inquiry or investigation may be ordered and such inquiry or investigation is part of the judicial proceedings";
And Sulaiman, C. J. held as follows:‑
"The proceedings before a Magistrate under Chapter 16 are judicial proceedings within section 4(1)(m) in which evidence may be legally taken on oath. Indeed it is the duty of the Magistrate to examine the complainant on oath before he proceeds further, it is not necessary that the statement made should itself have been made on oath so long as it is a part of the judicial proceeding particularly if it is a report made under orders of the Court."
We have already mentioned earlier that the accused did not take any defence and before that stage came, the accused was discharged under section 253(1) of the code of Criminal Procedure and consequently there was no trial in the case. The petition of complaint of Ajman Ali was not formally brought on record of this case and its contents not legally proved. In the circumstances any begging of the question on the point will be premature at this stage.
Ajman Ali made a statement on solemn affirmation and his initial deposition was recorded under section 200 of the Code of Criminal Procedure by the learned Magistrate. It is stated that the initial deposition of Ajman Ali does not tally with the allegations made in his petition of complaint. The accused is alleged to have published the contents of the complaint and not the substance of the initial deposition. The question is whether the accused published the proceedings of a Court. This leads us to see at what stage the proceeding of a Court starts or which will be the proceeding of the Court. Whether the complaint or the initial deposition or both.
A Magistrate takes "cognizance of an offence" on a complaint, when after applying his mind to the allegations he proceeds to take some steps intending thereby to start a proceeding. A Magistrate is said to have taken cognizance of an offence under section 190(1)(a) of the Code of Criminal Procedure when he has not only applied his mind to the contents of the petition but has also taken some steps for the purpose of proceeding in a particular way as indicated in the subsequent provisions. The first step to be taken by the Magistrate for the purpose is to examine the complainant under section 200 of the code of Criminal Procedure. This means that the actual proceeding in the case commences with the examination of the complainant, when the Magistrate after perusing the complaint is moved to make some enquiry as to the correctness or otherwise of the allegations.
"Judicial proceeding" has been defined in section 4(1)(m) of the Code of Criminal Procedure. "Judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath.
The case cited above relates to a first appeal arising out of a civil suit for damages for libel and the facts are distinguishable. The view expressed therein by Bennet, J. if we are permitted to say so, with all regards to the learned Judge, does not seem to be supported by sufficient reasons and is not also in full consonance with Sulaiman, C. J. However, we do not like to say at this stage anything more about the case, law or the point raised above as we propose to send the case back to the learned Magistrate with the direction to proceed with the trial.
For the reasons, stated above the order of discharge passed in the case is unreasonable and perverse. In our opinion it is a fit case to frame charge against the accused. The order complained of is therefore set aside and the Rule is mad e absolute. The case is sent back to the learned Magistrate with a direction to proceed with the trial in accordance with law from the stage at which the case was fixed for framing of charge, if any.
Let the records of the case be sent down immediately for expeditious disposal of the case.
.‑I agree.
Rule made absolute.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer