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Criminal Appeals Nos. 220 and 277 of 1960, decided on 24th August 1960.
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----‑Case withdrawn under S. 494, Cr. P. C. for want of sanction‑Sanction later can be accorded on basis of old records‑Fresh investigation and fresh report not necessary‑Objection as to validity of sanction‑To be raised at earliest opportunity.
A case against the accused was originally started by the prose cution without obtaining sanction. The case was, therefore, withdrawn under section 494 of the Criminal Procedure Code, 1898, and subsequently after proper sanction was obtained charge -sheet was submitted against the accused for their trial by the Special Judge. The sanctioning authority while granting sanction relied on the old records for the satisfaction required for granting sanction. Objection was taken that in the absence of fresh investi gation and report the sanctioning authority wrongly relied on old records :
Held, that there was nothing to debar sanction on the basis of the old materials against the accused. Fresh investigation and fresh report were not necessary. All that was necessary was that the sanctioning authority should apply its mind to the material before it :
Further, that objection as to validity of sanction cannot be agitated before the Appellate Court when the opportunity was not taken at the trial Court itself.
Ss. 494 & 403‑ Discharge of accused on withdrawal of case under S. 494‑Fresh prosecution on same facts not barred under S. 403.
An order made under section 494 (a) of the Criminal Proce dure Code, 1898 is an order of discharge of the accused person and, therefore, section 403 of the Code does not debar the entertainment of a fresh complaint on the same facts.
Emperor v. Menghraj Devidas 23 C L J 305 distinguished.
Hata v. Emperor 30 C L J 233 ; Hukum Singh v. Emperor 30 C L J 1149 and Ramananda Lal v. Ali Hossain and others 26 C L J 129 rel.
Ss. 170 & 419‑Different offences‑Person charged with offence under both sections Offence under S.419 found not established‑Conviction under S. 170‑Not invalid.
Where a person who was charged under sections 419 and 170 of the Penal Code, 1860 was convicted under section 170 only because the charge under section 419 could not be established, it was contended that in the face of the acquittal under section 419, the accused could not be convicted under section 170 of the Code :
Held, that offences under sections 170 and 419 of the Penal Code, 1860 are entirely different from each other and so if the fact of cheating by false personation fails, it does not follow that the offence for false personation itself and its facilitation must also fail. The second part of section 170 of the Code relates to false perso nation and not fraudulent personation.
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----‑Isolated statements of witnesses‑Part and parcel of evidence.
The isolated statements in the evidence of witnesses are also part and parcel of the evidence and they cannot be thrown out of consideration because they seem to be isolated.
T. Ali with Abdul Hakim for Appellants.
Afzalul Haq for the State.
Criminal Appeal No. 220 of 1960 and Criminal Appeal No. 277 of 1960 are two separate appeals directed against the con viction and sentence of appellants Abdul Jabbar Khan and Kazi Arshad Mia respectively by the judgment and order of Mr. T. Hossain, Additional Sessions Judge and Ex‑Officio Special Judge, Tippera dated 8th March 1960. The appellant Abdul Jabbar Khan was convicted and sentenced to rigorous imprisonment for one year under section 170, P. P. C. and the appellant Kazi Arshad Mia was convicted and sentenced to rigorous imprisonment for six months under section 170/109 of the Pakistan Penal Code.
2. The prosecution case was that Abdul Jabbar Khan during the period from 30‑9‑56 to 18‑11‑56 at Palerbazar and other places within the Union Board No. 10 Panchgachia pretended to hold the office of an Ansar C. I. D. under the District Ansar Adjutant and he further stated that he was deputed by the District Ansar Adju tant for collecting information of mal‑practices ; that in this assumed character Abdul Jabbar Khan acted in colour of such office at Palerbazar and as such committed an offence under section 170 of the Pakistan Penal Code ; further case against him was that during the same period and at the same place as a pre tended Ansar C. I. D. he had arrested dealer Chakku Mia and also released him after realisation of Rs. 10 from him, it was also alleged that he threatened with arrest another dealer Jatindra Podder and also illegally realised from Jatindra Rs. 10 under threat: thus committing also an offence of cheating by false personation punishable under section 419 of the Pakistan Penal Code.
3. The case against the other appellant Kazi Arshad was that during the aforesaid period and at the same place he identified the appellant Abdul Jabbar Khan as a C. I. D. Ansar deputed by the District Ansar Adjutant to collect information of mal‑practices and corruptions, thus abetting the appellant Abdul Jabbar Khan in his false personation as a C. I. D. Ansar and also for pursuading people to believe that appellant Abdul Jabbar was deputed by the District Ansar Adjutant and also in realising wrongfully Rs. 10 from each of the dealers aforesaid. The appellant Arshed Mia was an embodied Ansar and as such a public servant at the time of the commission of the offence.
4. The allegation against him was thus that he had abetted the commission of offence under section 170 and 419 of the Pakis tan Penal Code.
5. The defence was a plea of not guilty. The case of the appellant Abdul Jabbar Khan was that he was neither an Ansar nor an Ansar C. I. D. nor he pretended to be any such thing but he had protested against deceased Shamsul Huq and others while they were playing at gambling at Kowadi Mela ; so Shamsul Huq for nothing arrested him and got him falsely implicated in this case with the help of the President P. W. 1 Sirajul Islam.
6. The case of appellant Kazi Arshad Mia was that he neither identified appellant Abdul Jabbar Khan as Ansar or Ansar C. I. D. to the public at Palerbazar or at any place within Panchgachia Union nor helped the appellant Abdul Jabbar Khan in any way.
7. Mr. T. Ali, the learned Advocate appearing for Kazi Arshad Mia has argued both the appeals together, with the consent of Mr. Abdul Hakim, the learned Advocate on behalf of the appellant Abdul Jabbar Khan. The facts and the arguments being common both the appeals are disposed of by this one judgment.
8. Mr. T. Ali has urged ground No. 9 of the memo. of appeal which is as follows:‑
"For that after the order of discharge of the accused, there being no investigation as required by law and no fresh materials placed before the sanctioning Authority, the Superintendent of Police, Tipperah, could not know the full facts of the case and approach the matter judicially and as such the sanction accorded by him on the basis of old records, cannot be called a valid sanction and the prosecution of the accused appellant without a valid sanction, is not permissible in law."
It appears that originally the prosecution started without obtaining' sanction and on the prayer of the C. S. I. the case was withdrawn from the Magistrate's Court for trial by the Special Judge after obtaining proper sanction. The learned Magistrate passed the following order on the prayer of the C. S. I.
"5‑2‑58 C. S. I. prays for remand. Put up on 8‑2‑58 with the opinion of the A. P. P. later.
Seen the petition of C. S. I. praying for withdrawal of the case.
Withdrawal permitted. Accused discharged under section 494, Criminal P. C."
5 P. Ws. were examined before the charge and summons and warrant of arrest were issued against both the appellants by the learned Magistrate but no charge was framed. It appears from the entry dated 2‑12‑57 of the learned Magistrate that withdrawal was not for want of evidence but for trial by a Special Judge after obtaining proper sanction.
9. On 22‑1‑59 the Special Judge made the following entries in his order‑sheet :‑
"Received charge sheet along with sanction order against accused (1) Abdul Jabbar and (2) Kazi Arshad Miah under sections 419/170, 342/109, P. P. C. showing them as absconding. The case was originally withdrawn on 5‑2‑58 in the Court of Mr. M. A. Sardar, Magistrate 1st Class, under section 494, Cr. P. C. Call for the record fixing 26‑1‑59."
That is the stage of things about the withdrawal of the case, as disclosed by the order‑sheet.
10. In developing his point, Mr. Ali has referred to the evi dence of P. Ws. 5 and 6 which are as follows :‑
"P. W. 5" . . I received the records of this case on 20‑3‑58. There was no direction on me for holding any investigation. I did not go to the locality nor I examined any witness. I sub mitted charge‑sheet on 18‑1‑59. Another charge sheet was submitted before in this case by another officer.
Cross‑examination for Abdul Jabbar : Declined.
P. W.6. . . . . . I investigated this case and examined witnesses. I submitted a report to the S. D. O. Comilla showing this accused Abdul Jabbar arrested in this case. After comple tion of investigation I submitted charge‑sheet. The case thereafter was withdrawn and made over to the D. A. B. for further investigation.
D. A. B. S. I. Md. Ismile (P. W. 5) investigated the case and after obtaining sanction submitted charge‑sheet."
Mr. Ali wanted to say that in the absence of fresh investigation and report the Superintendent of Police wrongly relied on old records for the satisfaction required for granting sanction.
11. When the case is sought to be tried by the Special Judge it is true that sanction is the sine qua non for it but there is nothing to debar sanction on the basis of the old materials as they are Fresh investigation and fresh report are not necessary for sanction. All that is necessary is that the sanctioning authority should apply its mind to the materials before it.
12. Further as rightly pointed out by Mr. Afzalul Huq, the, learned Advocate ‑for the State, the point of sanction cannot be, agitated before this Court at this stage when the opportunity was not taken at the trial Court itself.
13. Mr. Ali has next pressed ground No. 8 of the memo, of appeal which is in the following terms :
"For that the accused appellant having once being discharged and there being no fresh materials and no fresh complaint, the prosecution of the accused cannot be proceeded with:"
Mr. Ali has cited the decision in Emperor v. Menghraj Devidas (23 C L J 305) of which the facts and decisions are as follows :‑
"A District Magistrate issued an order to the public under section 144 of the Criminal Procedure Code for prevention of a public nuisance in a certain locality within his jurisdiction. The order had not the desired effect, as the nuisance was repeated, with the result that the Police challaned the accused and others before the City Magistrate, for an offence under section 291 of the Penal Code. The case was not proceeded with but after three or four adjournments, the Public Prosecutor, under instruc tions from the District Magistrate, withdrew it under section 494 of the Criminal Procedure Code, and, armed with a fresh sanction from him, filed a fresh complaint on the same facts before another Magistrate under sections 188 and 290 of the Penal Code.
Held, that as the withdrawal of the charge under section 291 of the Penal Code amounted to an acquittal under section 494(b) of the Criminal Procedure Code, that acquittal operated as bar under section 403 (1) of the Criminal Procedure Code to subse quent proceedings under sections 188 and 290 of the Penal Code, as fn the trial under section 291 of the latter Code, the accused could have been convicted under section 188 thereof, though not under section 291, and that, therefore, he could not be tried again on the same facts for any other offence of which he might have been convicted under section 237 of the Criminal Procedure Code though not charged with it."
14. That case related to withdrawal of a charge under a particular section of the Penal Code and it was held that the withdrawal of the charge having amounted to acquittal, in the absence of fresh materials there could be no fresh trial on a similar charge. The present is not a case of withdrawal of a charge under any particular section of the P. P. C. but withdrawal of the whole case for the purpose of sanction.
16. Mr. Afzalul Huq cited the decision in Hata v. Emperor (30 C L J 233) in which it was held :
"Section 436, Criminal Procedure Code confers an independent power on the District Magistrate to direct any subordinate Magistrate to make further enquiry into any complaint which has been dismissed, or into the case of any person accused of an offence who has been discharged.
An order of discharge passed on withdrawal of a case before charge is framed does not amount to an acquittal.
A person discharged by a Magistrate on a consideration of the evidence tendered against him and a person discharged at the instance of the Public Prosecutor under section 494, Criminal Procedure Code, are on the same footing."
He has also referred to the decision in Hukum Singh v. Emperor through Mst. Champavati (30CLJ1149).
16. Mr. Afzalul Huq has also referred to the decision in Ramananda Lal v. Ali Hossain and others (26CLJ129) of which facts and decisions are as follows :‑
"An order made under section 494 (a) of the Criminal Proce dure Code is an order of discharge of the accused person and, therefore, section 403 does not debar the entertainment of a fresh complaint on the same facts.
There is nothing in law to prevent a Magistrate from enter taining a complaint after the discharge of the accused person in a previous police case on the same facts."
17. In the light of the above decisions it is not quite correct to bold that once the accused was discharged he cannot be tried again on the same facts, particularly, in the present case the discharge being not for want of evidence but at the instance of the Court Inspector who made a prayer for the trial by Special Judge after obtaining necessary sanction. Hence, there is no substance in this contention of the learned Advocate.
18. Mr. Ali has next urged ground No. 13 of the Memo. of appeal which is as follows :‑
" For that the learned Judge himself having found "it cannot be said that there is any legal evidence showing any extortion of money by the accused Jabbar", should have held that in the circumstances, there cannot be any conviction of the accused under section 170, P. P. C. On the basis of the shaky evidence of P. Ws. 1‑4 whose evidence so far the charge under sec tion 419, P. P. C. are not worthy of credit."
Mr. Ali wants to say that in the face of the acquittal under -section 419, the charge under section 170, P. P. C. is not sustainable, but the two charges are entirely different and section 419 failed only because there was want of clear evidence on that point but if the facts of cheating by false personation fails, it does not follow that the offence for false personation itself and its facilitation must also fail.
19. The second part of section 170 of the Pakistan Penal Code relates to false personation and not fraudulent personation. Any act done or attempted to be done under the false personation is enough. The appellant Jabbar Khan pretended to be C. I. D. Ansar or even Ansar which he was not. On the point of his acti vities there is evidence of P. W. 1 which is as follows :‑
"I saw this Abdul, Jabbar at Palerbazar within P. S. Daud kandi. He used to check and supervise the goods of the dealers at the respective houses of the dealers by describing and posing himself as an Ansar C. I. D. deputed by District Ansar Adjutant."
P. W. 2's evidence is as follows :‑
"Arshad used to supervise our stocks. I saw accused Jabbar sitting at the house of our President Serajul Islam. Accused Jabbar one day went to my house to inspect my stock but in absence of any Union Board Member I did not show him the stock. I saw accused Jabbar and Arshad sitting together at the house of our President. Accused Arshad told me that accused Jabbar was a man of his place and also an Ansar . . . . At the house of our President accused Jabbar told me that he was an Ansar C. I. D."
Evidence of P. W. 4 is as follows :‑
"Accused Jabbar said that he was an Ansar and used to super vise the stocks at the houses of the dealers named Chakku Adorn Ali and Makbul Hossain."
20. The evidence as disclosed shows that there were some acts by appellant Jabbar Khan. Language of section 170, P. P. C. is as follows :‑
"Whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office, and in such assumed character does not contemplate to do any act under colour of such offence shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
Language of the section is "does or contemplates to do any act". Supervising stocks surely comes within act.
So far as Arshad goes there is evidence of P. Ws. 2 and 3. P. W. 2 " . . . . Accused Arshad told me that accused Jabbar t was a man of his place and also an Ansar."
P. W. 3 "Accused Arshad told me that Jabbar was a man of his locality and an Ansar".
The evidence as disclosed shows that Arshad had a particular part to play in introducing the main accused to the world.
21. The position being as above, there is no substance in this contention also.
22. Mr. Ali has next pressed grounds Nos. 2 and 3 of the memo of appeal which are as follows:‑
"For that the isolated statements of P. Ws. 1, 2, 3 and 4 hav ing not been corroborated on material points by any other evidence, the learned Judge should have held that the prosecution has failed to prove its case beyond reasonable doubts.
For that the P. Ws. 1‑4 having all admitted in their deposi tion "none was with me when Abdul Jabbar told me that he was a C. I. D. of Ansar" or "none was with Abdul Jabbar on that day when he wanted to see my stock", or "none else knows that Jabbar demanded money from me" or " I did not see actual supervision of the stock", the learned Judge should have held. that the prosecution did not come with a clean hand and that the entire prosecution case is a got up one."
23. P. Ws. 1, 2, 3 and 4 have corroborated each other by their evidence. The isolated statements are also part and parcel of the evidence and they cannot be thrown out of consideration because they seem to be isolated.
24. So far as ground No 3 goes, it is question of "should have only". For witnesses have independently stated about the pretension and the acts and the conclusion of the learned Judge is the cumulative effect of their evidence.
25. The position being as above, I see no force in this ground also.
26. In the result, the appeals are dismissed. The appel lants should forthwith surrender to their bail bonds and serve out the sentence.
K. B. A.
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