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Criminal Transfer Application No. 286 of 1946, decided on 28th May, 1947.
‑Allegations against accused not stated in police charge‑sheet before Magistrate but claimed to have been Mention ed in police diaries‑Police diaries may be ignored for purpose of bail‑Objectionable use of police diaries‑Criminal Procedure Code (V of 1898), S. 172.
It is the police charge‑sheet placed before the Magistrate which should contain a statement of allegations against the accused.
Where the charge‑sheet did not contain any information against the accused but a "Special Note" was added at the bottom that the accused after making a promise to get restored an abducted woman and her child from other accused had absconded, and the prosecution alleged at the hearing of bail application that there was some information against the accused in police diaries :
Held, that it was unjustifiable to refuse bail in such a case.
Further, that if there was some information in the police papers it should have been set out in the report before the Magistrate. Covert references to the contents of police diaries were objectionable.
According to section 172 Cr. P. C. the contents of a police diary are not evidence but are to be used as aids to the enquiry or trial as for instance to assist the Court in
questioning witnesses and elucidating by legal evidence points which need clearing up.
Contents of police diaries are not material placed before a Magistrate.
, Ss. 204, 253 (2) ‑Accused may be discharged before recording evidence if there is no allegation against him in police charge‑sheet.
The First Information Report did not mention that the accused was connected in any way with the crime. Likewise the report under section 173 Cr. P. C. made no reference whatever to the accused being connected with the crime. The only reference to the accused was in a note at the bottom of the report to the effect that having promised to restore the missing woman, he had absconded.
An application made by the police later when the accused was produced before the Magistrate after arrest furnished no information as to how the accused was connected with the offence under enquiry.
Held, that assuming that the Magistrate had on receipt of the report properly taken cognizance under section 190, clause (b), Cr. P. C., of the offences alleged, and had embarked upon an enquiry involving those accused persons against whom there was information before him of participa tion in the crime, on the analogy of section 204, Cr. P. C., the Magistrate was not entitled to continue the proceedings unless there were sufficient grounds for doing so, and he must, if there were sufficient grounds, discharge the accused under clause (2) of section 253, Criminal P. C.
, S. 439‑Juris diction exercised on transfer application, and proceedings quashed.
On a transfer application coming up before the Chief Court, it appeared from record that there was in fact no case against the petitioner‑accused. The proceedings against him were quashed in the exercise of revisional jurisdiction under section 439 Cr. P. C.
Dharamdas M., for Applicant.
Parmanand Kundanmal, Public Prosecutor Sind, for the Crown.
---This is an application under section 526, Criminal P. C., by one Haji Imambux son of Mohammad Ramzan, Kalhoro by caste, a Zamindar of Kandiaro Taluka, Nawabshah District, to transfer a case pending against him under section 366 of the I. P. C. in the Court of the Sub‑Judge and First Class Magistrate, Naushahro Feroze, to a Court outside the Nawabshah District.
The following are the grounds stated in the application
"(1) The applicant has a reasonable apprehension that he will not have a fair trial in the Court of any subordinate Magistrate working under the District Magistrate, Nawabshah.
(3) That as the personal honour of the District Magis trate is involved, it will be almost impossible to get a fair trial at the hands of a subordinate Magistrate of his.
(4) That the order refusing bail by the Magistrate concerned clearly indicates that the applicant will not have a fair trial at the hands of the Magistrate.
(5) That it is expedient in the interests of justice that the case be transferred."
The facts upon which this application is based and the circumstances relied upon are these.
On the 10th of September 1946, a First Information Report was made by one Misri son of Jumo, a resident of Hakim Sandi Village, Kandiaro taluka, to the Kandiaro police of offences of theft, abduction and unlawful assembly falling under sections 363, 148, 452, 379, 366 Indian P. C. and nine persons, Alibux, Gambo, Kaim, Daim, Kassim, Usman Ghano Hatar, Nihal and Sultan were mentioned as Co-accused. The report reads :‑
"It is complained that I secured the hand of Mst. Siyani in marriage from her father Ramzan Hottar during the last juwari' harvest. Her age will be about twenty years. From her I have a daughter named Umrah born two months back. Haji Daim Hottar brother of Ramzan's wife had been demanding relationship of Mst. Siani from Ramzan prior to me, but Ramzan refused him. Owing to the perversity, thereof Haji Daimwallas were angry with me. About two and a half months back they drove away two buffaloes, one exclusively mine and the other in partnership with Rahimdino which were tethered within the fence in front of my house. Footprints of four men two with country made shoes, one with shoes and one with Sindhi shoes were with them. I, Ramzan Bhatti and Majid Sangi tracked them to the houses of Nihal, Sultan Bhatti, Kaim and Ali Bux. Then I and Ramzan came back and Majid and Phatu went to them. Both of them returned on the next day and said that (they) had confessed having stolen the above two buffaloes, they were giving the one in partner ship with Rahimdino and that they refused to give the other one exclusively mine. Then Rahimdino sent Beg Sani to them to whom also they replied in a similar manner. They again told us to come to. Haji Imambux Kalhoro for a settlement for Ramzan had given the hand of Mst. Siani to me. All the five of us, I, Majid Sangi, Ramzan Hottar, Rahimdino Sangi and Phatu Bhatti went to Haji Imambux but the matter was not settled because the above Hottars did not come. The Wadera again fixed the matter for four days later i.e. twelfth of Sindhi month i.e. yesterday. We the five of us above Hathars went to Wadero Imambux at his engine on the other bank. Daim, Kaim, Alibux and Usman also had accompanied us. The. Wadero Imambux made a bufalo, the one ill partnership with Rahimdino to be given by them (accused) to us on the 3rd of the next Sindhi month. For the other one, we were refused point blank. All of us crossed the ferry together. We stayed with Juma Chandia at latter's water wheel while they went their own way. We started from there this morning. On reaching Kandiaro. Sonaio gave the information, that my wife had been abducted by Hathars. Then my mother‑in- law Mst. Mahnaz and brother of my, wife Buxan told me that Alibux, Gambo, Kaim, Daim, Kassim, Usman Gahno Hathar and. Sultan assaulting with lathis and hatchets and pushing them and my sister Sahibzadi, my brother Mero and my guest Loung Bafat away, gagged my wife Siahi and took her away along with the daughter Umrah by force on a camel. I* am the complainant. Arrangements may be made Mst. Siani is of swarthy complexion, middle sized stature, slim and age about 20 years. On her person she has black trousers of garbi cloth, red vest, white headress, silver bangles, a silver neck ornament, 4 silver kind of earnings, girl Umrah wears nothing on her person.
Description of buffaloes:
Rs.
(1) The buffaloe exclusively black horns curved,
tail short, no branded mark, having given birth
once. .80
(2) One buffaloe in joint partnership with
Rahimdino middle aged black colour having a
spot on forehead pregnant for the first time .... 100
_______
180
The complaint was read over to me."
This is a complicated story involving, first the theft of two buffaloes some two months before the report; and later the abduction of the woman; Siani, the day before. The Haji Imambux referred to is the present applicant and it is clear that the report does not in any way suggest that he was involved in either of the offences. He is merely referred to ‑ as the Zamindar of the accused to whom the existing disputes between the accused and complainant's parties had been referred for settlement.
On the 27th of September 1945, the police, on a charge sheet of that date sent up before the Subordinate Judge and First Class Magistrate, Naushahro Feroze six of the accused persons cited in the report showing the other three as absconders. There is no reference in this charge sheet to the applicant being an accused person or being in any way 'involved in the crime and he was not shown in the appropriate column as an absconder. There appeared, however, at the bottom of the charge sheet the following peculiar and cryptic note
Special note.‑Having promised to give the hands of Mst. Siani wife of the complainant. and Umrabzadi his daughter, Haji Imambux Kalhoro has absconded."
In view of what followed the making of this note appears significant. It might merely be said at this stage that Haji Imambux the applicant was not absconding and the assertion that he had promised to restore Mst. Siani to the complainant has been stated to us in the course of these proceedings to have been based on some note in the police diary.
In September 1946 the Sind Legislative Assembly had been dissolved and as is, clear from the facts before us; and as indeed it was inevitable; there was much canvassing on behalf of candidates in the elections which were to take place in December 1946 for the new Assembly.
One of the late members for the Nawabshah District had been Syed Muhammad Ali Shah who had been a minister in the Sind Government. Syed Muhammad Ali Shah was contesting the election as a member of what was known as the Progressive Muslim Jamait and was opposing the candi date put forward on behalf of the. Muslim League., Among Syed Muhammad Ali Shah's supporters were the present applicant and one Abid Shah.
Certain proceedings against this Abid Shah had been instituted on the 13th of October 1946 under 4ection 110 of the Criminal P. C. The circumstances under which he was thus involved have been dealt with at some length in our order of the 26th May 1947 in Criminal Revision Application. No. 58 of 1946, quashing the proceedings, and reference must be made to that judgment for the details of Abid Shah's case. It is sufficient to say here that the grounds put forward on behalf of Abidshah in support of his application for quashing the proceedings, and the grounds relied upon in this case by Haji Imam Bug are the same.
It is asserted that Mr. Masud the Collector and District Magistrate of Nawabshah, was a supporter of the Muslim League and sought after the dissolution of the Sind Assembly in August 1946 to influence the course of the elections on behalf of the Muslim League. That he brought pressure to bear upon the applicant arid upon Abidshah to withdraw their support of Syed Muhammad Ali Shah and that when they did not yield to this pressure they were each involved in criminal proceedings, Abidshah in the proceedings under section 110, Criminal P. C., and the applicant in the abduction case referred to above.
On behalf of the applicant the following facts immediately preceding his arrest are stressed as indicating that Mr. Masud was directly responsible for the institution of the proceedings against him.
On the 11th of October 1946 there were published in the "Sind Observer" copies of certain letters addressed by Mr.. G. M. Syed, leader of the Progressive Muslim Jamait to the Governor‑General and the Governor of Sind in which Mr. Masud was accused of exerting official, influence and interfering in the pending Assembly Elect ions.
On the 12th of October 1946 under the caption. "Alleged interference of the Collector in Elections" there appeared an article embodying the following statement to the Press by Syed Muhammad Ali Shah :‑
"In the issue of the Sind Observer dated October 11, appears only a portion of the notes of the talk which Mr. Masood, Collector of Nawabshah had with me. Mr. Masood is determined to do his worst in the elections against us. On return from Karachi he has started touring in my constituency and he has been freely threatening people with dire consequences if they did not support the League candidates. Against my leading supporters he has been planning prosecutions. There is overwhelming legal evidence to sustain this charge. I am not disclosing here the details of the evidence.
'All I say is that‑ if the Government wants that there should be purity of elections then it must set up' a judicial tribunal to hold an enquiry into the conduct of this officer. I challenge them not to avoid or shirk this duty on their part. If the Collector is a responsible officer the persons who bring the charge against him are also no less responsible.'
The elections in Nawabshah District particularly would only amount to a force, if officers are let loose upon the electorate to terrorize them and extort their votes. Adminis trative values are no doubt declining but it is possible sometimes even in the midst of that decline to maintain some semblance of dignity."
Then follow in the same article statements to the press purporting to hate been made by Abidshah and the applicant Haji Imambux to the effect that Mr. Masood was exerting pressure on them in connection with the elections.
The reference to the applicant is as follows :‑
"Haji Imambux Muhammad Ramzan Kalhoro, a Zamindar of Abad, Nawabshah district in a statement adds :
'In the 'Sind Observer' of October 11, there appears a gist of Mr. Muhammad Ali Shah's talks with the Collector of Nawabshah. Mr. Muhammad Ali Shah has referred to the talk that the Collector had with me a few days earlier. That is wholly true. The Collector did tell me that I must support the Muslim League candidates in the elections; otherwise he would bring me into trouble. I had refused. I then communicated the fact, to Mr. Muhammad Ali Shah.
As has been stated in the order in Abidshah's case, a warrant of arrest was issued against Abidshah on Sunday the 13th of October, and he was arrested on the 16th of October. The hearing of his case was fixed for Sunday the 20th October. Abidshah apparently anticipating that he would be detained in custody pending the proceedings took the precaution of producing on that date eight sureties whose standing had been previously certified to by the Mukhtiarkar.
Among these were Syed Muhammad Ali Shah and the present applicant. Abidshah s apprehensions turned out to be well founded because he found himself confronted with an applica tion by the Public Prosecutor that he should be immediately called upon to execute a bond for Rs. 10,000 with sureties living within 4 miles. The Magistrate without any regard to the severity of these terms issued the order prayed for Abidshah then produced his eight sureties and all were rejected and he .was taken into custody. Haji Imambux was rejected on the ground that he did not live within four miles of Kandiaro and also on tile ground that he himself was a bad character ; that there were proceedings under section 3661. P. C. against him under investigation. The proceedings referred o are admittedly those which were pending in the Court of the' Sub‑Judge , and First Class Magistrate, Naushahro Feroze, and in which the applicant had not yet been‑involved as an accused person. Reverting to the note made in those proceedings as to the applicant absconding, it is obvious that if at the time he was an absconder he could never have been then offered as a surety. Nor on general grounds can it be accepted for one moment that he was absconding. There was no need for him to do .so as he was not then accused of any crime arid moreover he was a well known local Zamindar paying considerable land revenue and openly working for and supporting a candidate for the Sind Legislative Assembly.
On the 30th of October, only ten days later the applicant was arrested and together with Nihal and Sultan, two of the persons who had been mentioned as absconding in the pend ing abduction proceedings, sent up before the First Class Magistrate, Naushahro Feroze, as an accused person.
The application made in this behalf by the police is as follows :‑
In the Court of First Class Magistrate,
Naushahro Feroze,
Misri son of Jumo Bhatti, village Hakim Sangli taluka Kandiaro . . . . . . Complainant
(1) Nihal son of Gul Muhammad Bhatti residing near Saidpur taluka Kandiaro.
(2) Sultan son of Waryam.
(3) Haji Imambux son of Muhammad Ramzan, resident of Abad taluka Kandiaro . . . . . . Accused.
Offence No. 113/1.,
It is prayed in the Hon'ble Court that Haji Daim and others co‑accused with the above accused have already been challaned in the Court under Challan No. 67 dated 27th September 1946. Thereafter accused Kassim was challaned in the Court under Report No. 3922 of 22/10. The above accused had after committing the offence absconded. They have been apprehended and are being hereby challaned in the interests of justice. Witnesses in evidence have been shown in the same Challan No. 67 of 27/9. The Hon ble Court may be pleased to hold proceedings against all the accused together.
Date and hour of arrest. Place of arrest
Nos. 1 and 2 : 27th . October Nos. 1 and 2 near Saidpur,
1946 at 1 p.m.
No. 3 : 30th October 1.946 No.3. Kandiaro.
at 1 p.m.
Date and hour when sent up Date of reaching police
for trial station
30th October 1946 : 10‑30 a.m. 6‑30 a.m. on 27th October
1946.
Date of appearance with Court Nos. 1 and 2. on recognizance 30th October 1946.
(Sd.) . .
Sufi‑Inspector Kandiaro:
Two descriptive rolls of the accused are attached here with".
It is to be observed that the applicant was included with two of the specified absconders although there is no informa tion in this application as to what he himself is supposed to have done or the part he is said to have taken in the offences under enquiry. It is not‑suggested that he took part either in the theft of the buffaloes or in the abduction of Mst. Siani, or that "he sheltered the woman after the abduction. He has merely been associated with two of the original accused in the vague (deliberately vague we think) statement covering all three persons sent up :‑
"The above accused after having committed the offence absconded."
Immediately the applicant came up before the Magistrate a bail application was made on his behalf but this was opposed by the Public Prosecutor of Nawabshah and rejected by the Magistrate on grounds which we consider quite inadequate. The order rejecting the bail application is as follows :‑
"Heard Mr. Dialmal, Public Prosecutor, Nawabshah and the defence counsel. The accused is a very influential Zamindar arid perusal of police diaries show that he had been deliberately absconding so far. There is every like lihood of his tampering evidence in the case if he is released on bail. The other accused are also said to be living in his Keti and the girl in the case, who is said to have been abducted, appears to have been kept back by the said accused and it is not yet traceable, The Public Prosecutor apprehends that she may be done, away with. Under the circumstances, I reject the bail application‑--Mr. Dialmal peas called by me to argue this application.
(Sd.)
30‑10‑1946. Sub‑judge and F. C.‑M.
Naushahro."
It is difficult to accept that the learned Magistrate could himself have believed that the applicant had been absconding. He was a Zamindar paying Rs. 10,000 as land revenue, and, as indicated above, only a few days before had offered 'himself as a surety for Abidshah before the Sub‑Divisional Magistrate. It must have been well known in the district that he was one of the supporters of Syed Muhammad Ali Shah and work ing openly for him.
It is obvious that the Public Prosecutor of Nawabshah must have thrown his weight into the scale and opposed bail with some vehemence. Otherwise we cannot conceive that any Magistrate would in the circumstances have refused bail unless actuated by improper motives. Yet when this Court endeavored to ascertain the grounds upon which the applicant had been arrested and sent up and his bail refused; we were confronted by what might be described as a barrier of equivocation. Mr. Parmanand, the Public Prosecutor for Sind, was unable to furnish any information. Mr. Dialmal, the Public Prosecutor of Nawabshah, who was appearing with him and who stated that he had been instructed to oppose bail, suggested that there was some information in the police papers. If this was so, it should have been in the reports before the Magistrate. These covert references to the contents of police diaries are objectionable.
The purpose for which a Criminal Court may use a police diary is laid down in section 172, Criminal P. C. The contents of a police diary are not evidence but are to be used as aids to the enquiry or trial as for instance to assist the Court in questioning witnesses and elucidating by legal evidence points which need clearing up. In any event, the Court asked Mr. Dialmal what sort of information the police papers divulged and the following statement was recorded of what Mr. Dialmal said to this Court on the 6th May 1947 :‑
"Mr. Dialmal states that there is no further information before the Magistrate relating to the applicant and his association with the offences alleged, other than that upon the record of these transfer proceedings, and other than any information which may be contained in the police diaries. These diaries are said to contain a statement by the applicant to the effect he would produce the woman."
We were here confronted with a vicious circle. The record before us in these transfer proceedings divulges nothing against the applicant and what Mr. Dialmal had to fall back upon was the alleged statement of the applicant to the police that he would produce the missing woman. If as suggested this statement was indeed of an inculpatory or confessional nature, it was clearly inadmissible in evidence as having been made to the police, but assuming the applicant did at some time agree to get the woman restored there was nothing by reason of this fact alone to suggest he was con nected with the crime. Zamindars are frequently resorted to for the purpose of getting abducted woman restored.
On the 7th May when the arguments before us continued Mr. Dialmal volunteered another statement, this time that he remembered or thought that perhaps, in the police papers was the recorded statement of one witness to the effect that the applicant was connected with the crime.
However this may be, it was not material placed before the Magistrate and was never put before the Sessions Judge le when the latter released the applicant on bail. It is quite manifest from the way these proceedings were argued before us that the prosecution did not produce before the Magistrate any information capable of the least scrutiny justifying the continuance of the proceedings against the applicant.
Not only was it unjustifiable to have refused bail, but the learned Magistrate should, in the absence of any informa tion being put forward on behalf of the prosecution to connect the applicant with the crime, have discharged hurl. As we have pointed out the First Information Report did not mention the applicant as being connected in any way with the crime. Likewise the report under section 173 Criminal P. C. made no reference whatever to the applicant being connected with the crime. The only reference to the applicant was in the sinister note to the effect that having promised to restore the missing woman, he had absconded.
The application made by the police on the 30th of October still furnished no information as to how the applicant was connected with the offence under enquiry.
It may be assumed for the purpose of this case that the Magistrate had on receipt of the report of the 29th (27th ) September 1946 properly taken cognizance under section 190, clause (b), Criminal P. C., . of the offences alleged, and had embarked upon ,an enquiry involving those accused persons against whom ere was information before him of participa tion in these offences. Section 204 of the Criminal P. C. relates to the issue of process and lays down that if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding he may issue the appropriate process. If the police have already sent. up an accused person under arrest no occasion arises for the issue of process under section 204 by the Magistrate. But on the analogy of section 204, Criminal P. C., he is not entitled to continue the proceedings against any person unless there are sufficient grounds for doing so, he must, if there are sufficient grounds for doing so, discharge the accused under clause (2) of section 253, Criminal P. C..
On the 31st of October 1946 Mr. Muhammad Bux, the Sessions judge, very properly released the applicant on interim bail and confirmed his order on the 12th of November 1946. In doing so, he declined to accept the grounds put forward by the Public Prosecutor for opposing bail. He said :‑
"Heard Mr. Dharamdas and the P. P. In the F. I. R. the name of this man is not mentioned. In the earlier challan against other accused persons this man is not shown as an absconder. There is only a note at the end that the appli cant had disappeared after undertaking to produce the complainant's wife and daughter. Even if true, though this note is most novel of its kind, it amounts to a confession to the police officer which is not admissible in evidence. The applicant is a respectable person paying about Rs. 10,000 as assessment. All these facts entitle him to a confirmation of the bail order. I accordingly confirm his bail. Application disposed of.
It is clear from the various facts set out above that the applicant described as a respectable person by the Sessions Judge and a zamindar paying Rs. 10,000 land assessment, has been involved in criminal proceedings, arrested and his bail refused by the Magistrate, and that the grounds put forward as justifying this, are nebulous. It is not denied that the applicant was at the time of his arrest a supporter of one of the candidates for election to the Sind Legislative Assembly, Syed Muhammad Ali Shah who was standing in opposition to the Muslim League candidate.
It is argued therefore on behalf of the applicant that it is more than mere coincidence that the applicant should have been involved in this way in criminal proceedings so soon after there appeared in the press a note in his name stating that he had been approached by Mr. Masud to support the Muslim League and had figured as one of the sureties produced by Abidshah that the peculiar note made in the police report under section 173, Criminal P. C., as to, the applicant having promised to restore the woman and then absconding, was inserted so as to bring pressure to bear on the applicant and when he was not prepared to be coerced he was eventually arrested and sent up as an accused person in the abduction case.
The combination of circumstances is undoubtedly strange but it does not necessarily, however, follow from the facts stated that the District Magistrate of Nawabshah was himself responsible for involving the applicant in the criminal pro ceedings. There has been no judicial enquiry into the allegations of interference by Mr. Masud. These allegations were it is true, publicly made, and by such persons as Syed Muhammad Ali Shah, an ex‑Minister in the Sind Government, but Mr. Masud has denied them. His observations on the transfer application were invited and he has denied having any personal interest in the case against the applicant or that he brought any pressure to bear and he said that the applicant was making false allegations to suit his own purposes. With regard to the circumstances under which the applicant was prosecuted, Mr. Masud seems to think that the action against the applicant was justified. He has referred to the "special note" in the police report and said :‑
"Such a note according to the Public Prosecutor in charge, shows that the complicity of the applicant is patent, but that the police have hesitated to mention him as an absconder, and that no officer 1has taken interest against the applicant. He urges that the total disappearance of the woman and the child should be considered a grave matter. Still the police showed to the applicant great consideration by not mentioning him as an absconder".
Here again we have a reference to the Public Prosecutor of Nawabshah and these observations are very reminiscent of the specious argument first put forward before us as justifying proceedings against the applicant, but slight enquiry by this Court elicited that the complicity of the applicant was far from "patent". The extent, if any, to which the Public Prosecutor of Nawabshah may have been responsible for tendering advice in this case or whether he was a willing instrument of others is not now before us for consideration. We are here concerned with the allegations against the District Magistrate. That the applicant was unjustifiably involved in criminal proceedings, and that this has been sought to be justified on specious grounds, does not, in our view, necessarily indicate, taking all the circumstances relied upon into consideration, that the District Magistrate had in fact set out to influence anybody on behalf of the Muslim League, and I am not prepared to hold, without any enquiry involving the recording of evidence‑a matter not involved in these transfer proceedings‑that the District Magistrate did take the part attributed to him in connection with the elections.
It is unnecessary to consider whether in any event an order for transfer should be made on the ground that justice should not only be done but appear to be done, because for the reasons sufficiently stated above, this is not a case in which the proceedings should be permitted to continue against the, applicant. There is no information upon record to justify the continuance of the proceedings and we are of the view that this is a case in which in exercise of our revisional jurisdiction they should be quashed and we order accordingly.
If there are in fact good grounds in existence for involving the applicant in the pending proceedings against the other accused, the Crown is always at liberty in the appropriate manner by laying the necessary information before the Magistrate, to proceed against him.
---I agree.
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