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Petitioner: SYED KANCHAN ALI VS Respondent: SHAHJAHAN
P L D 1962 Dacca 192
P L D 1962 Dacca 192
Before Murshed and Salahuddin Ahmed, JJ
Syed KANCHAN ALI‑Petitioner
Versus
SHAHJAHAN AND OTHERS‑Opposite‑Parties
Criminal Miscellaneous Case No. 22 of 1961, decided on 15th May 1961.
(a) Evidence Act (I of 1872), S. 165‑Court's power to put questions to witness‑Scope‑‑Court should normally refrain from putting itself in position of prosecutor or defence counsel.
(b) Witness‑Demeanour‑Valuable guide for credibility ---Court to refrain from warning as to unsatisfactory demeanour of witness.
(c) Criminal Procedure Code (V of 1898), S. 526 (3) (8)-- "Party interested"‑Explained‑(Case under S. 302, P. P. C.) Uncle of deceased, (father not being alive)‑Whether "party interested"‑Transfer application by private complainant‑Views of Public Prosecutor not always to prevail.
In a case under section 302, P. P. C. a transfer application was filed by an uncle of the deceased, (father of deceased being not alive) and the question was whether the uncle, was a " party interested " within meaning of section 526 (3), (8) of the Criminal Procedure Code 1898.
Held, that under certain circumstances a person injured or aggrieved by the crime a witness in the trial, an informant or a complainant on whose information the machinery of law is set in motion, would, under certain circumstances, come within the description of "any party interested" within the meaning of section 526 (3), (8), Criminal Procedure Code. The category stated above is by no means exhaustive. Of course, a Public Prosecutor, a complainant or an accused will always come under the aforesaid description.
In the present case if the father of the deceased had been alive and had made an application for transfer of the case, he was certainly a `party interested' within the meaning of subsections (3) and (8) of section 526. The petitioner was the brother of the father and an uncle as well as guardian of the deceased. He claimed that he had been responsible for the upbringing of the deceased and, that he was main taining the deceased and looking after his education. He stood in loco parentis to the deceased and seemed to have taken a keen interest in the prosecution of the accused. He was also an impor tant witness in the case. It would be doing violence to the meaning of the words in subsections (3) (8) of section 526 to hold that he was not a party interested in the prosecution. Technically speaking, the State as the Prosecutor in every criminal case and the accused persons, are directly interested in, and concerned with the case. But a witness or the complainant in a case will also be an interested party, though not directly so. A person in the position of the petitioner was a party interested within the mean ing of section 526. It was difficult to define the category of persons who will come within the meaning of the expression "party, interested in the case." It ‑has to be decided on the facts and circumstances of each case and the position of the complainant with regard to the case itself:
Further, that the views of the Public Prosecutor are entitled to a good deal of respect and normally such views ought to prevail; but it cannot be laid down as a hard and fast rule that whenever there is a clash between the contention of a private complainant and the opinion of the Public Prosecutor, the view taken by the latter must prevail in every case. It would, however, require special and exceptional circumstances to induce Courts to transfer criminal cases at the instance of a private complainant when such transfer is opposed by the Public Prosecutor.
Ghulam Rasul v. Emperor A I R 1941 Lah. 299 rel.
Ataur Rahman Khan for Petitioner.
Ahmadur Rahman Khan and Nurul Amin for Opposite‑Parties.
JUDGMENT
MURSHED, J.‑This is an application under section 526 of the Code of Criminal Procedure and it arises out of ‑the following circumstances:
One Habi at Habibur Rahman, who was a student of class X of the Kuliarchar H. L. School was the son of a brother of the petitioner. The petitioner himself used to reside at Patuakhali in the District of Bakarganj where he used to carry on business. The said Habibur Rahman is alleged to have been brought up by the petitioner after the death of his father and it is also alleged that the petitioner used to defray his educational expenses. The petitioner asserts that he had intended to offer his daughter in marriage to his nephew, the said Habibur Rahman.
The petitioner later on wanted that the boy should study at Barisal and arranged for a transfer from the Kuliarchar High School. On receipt of the transfer certificate taken on the 2nd of August B60, the said Habibur Rahman carne to Kuliarchar Railway Station with his belongings after taking leave from his school teachers. He wanted to avail himself of the next train at 5 o'clock. It is alleged that certain persons, who are accused in the case pending before the learned Additional Sessions Judge met him at the Railway Station and persuaded him not to go by the next train but to take the train which would leave Kuliarchar at 10 p.m.
It is alleged that at about 8 o'clock the said Habibur Rahman was taken from the platform on the pretext of going out for a walk and after he had proceeded some distance, he was mur dered by a number of persons, who are undergoing their trial pending in the Court of the said learned Additional Sessions Judge.
A police officer lodged a first information report in this case and after completion of the investigation, the accused persons were committed to the Court of Sessions where the trial is proceeding, as stated above.
The petitioner has further alleged that a number of Court officers of the District Courts under the District and Sessions Judge of Mymensingh are relations of one of the accused. It appears that this fact has raised some misgivings In his mind as to the course of the trial of the case pending against the said accused.
At the commencement of the trial, when prosecution witness No. I was being examined, it is alleged that prior to the cross examination of the said witness, the learned Additional Sessions Judge started asking the witness a number of searching questions and, in doing so, he exhibited his annoyance with the witness. It is further alleged that the learned Additional Sessions Judge expressed doubt with regard to the veracity of the evidence of the witness before the close of his evidence In Court. It is at this juncture that the petitioner, who happens to be an uncle and guardian of the deceased, got apprehensive as to the fate of the trial in the said Court. He has stated that he could not obtain the assistance of a lawyer to move a petition for adjourn ment of the case in order to enable him to move this Court under the provisions of section 526 of the Code of Criminal Procedure.
The learned Additional Sessions Judge rejected the prayer for adjournment, which was made under the provisions of section 526, subsection (8), of the said Code. Thereafter the petitioner moved this Court under the aforesaid section and obtained the present rule.
At the hearing of the rule, Mr. Ahmadur Rahman Khan, who appeared before us on behalf of the accused in the aforesaid case, opposed the application on two grounds. His first con tention is that the petitioner has no locus standi to make this application before us and, secondly, his contention is that this application should not be allowed on its merits.
With regard to the first point stated above, Mr. Ahmadur Rahman Khan has contended that the petitioner is not a "party interested" within the meaning of subsections (3) and (8) of section 526 of the Code. The said subsection (3) reads as follows: ‑
"(3) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative."
Subsection (8) runs thus :‑
"(8) If, In an inquiry under Chapter VIII or Chapter XVIII or in trial, any party interested intimates to the Court at any stage before the defence closes its case that he intends to make an application under this section, the Court shall, upon his executing if so required, a bond without sureties of an amount not exceeding two hundred rupees, that he will make such application within a reasonable time to be fixed by the Court, adjourn the case for such a period as will afford sufficient time for the application to be made and an order to be obtained thereon . ,
Mr. Ahmadur Rahman Khan has contended that the expres sion "any party interested" must mean either the Public Pro secutor, the complainant or an accused and that a person, who does not come within the aforesaid description, cannot be a " party interested " within the meaning of the aforesaid subsections.
This contention does not appeal to us. In construing a statute, we have to give the plain meaning of the words used. According to the plain meaning of the words "party interested", we cannot impose any such limitation on the expression as we have been invited to do by Mr. Ahmadur Rahman Khan. Prior to the amendment of subsection (8) into Its present form, the said subsection contained the words, "the Public Prosecutor, the complainant or the accused", instead of the words, "any party interested." Mr. Ahmadur Rahman's arguments are based on the phraseology of subsection (8) previous to its amendment, as stated above. It is also interesting to note that the learned Advocate opposing the application could not cite any decision to support his argument, except a Patna case in which two Judges composing the Division Bench differed from each other. He referred us to the case of Jamuna Kanta Jha v. Rudra Kumar Jha (20 Cr. L J 648). In this case the application for transfer was made at the instance of a person, who lodged a first information report, which led to the subsequent criminal proceedings. On the con tention that the petitioner had no locus standi to move the petition, reliance was placed on the wording of the section as it then stood. Subsection (8) of section 526, as it then stood, provided that an application for adjournment, with a view to move a transfer application, could be made at the Instance of a com plainant, Public Prosecutor or an accused person. The question before the Court was whether the applicant came within the category of a complainant. Mullick, J. was of the opinion that there was a distinction between the word "informant" and the word "complainant," according to the scheme of the Code of Criminal Procedure. He, therefore, held that the applicant was merely an `informant' and not a `complainant' in the sense that the applicant had not, in fact, lodged a complaint in the Court, which led to the initiation of the criminal proceedings. Jwala Prasad, J. dissented from the view and held that the word `complainant' had been used in a wider sense and it would include a person, who lodged an information, which led to the criminal proceedings.
We may state here that the view taken by Mullick, J. in the case cited above did not receive support in subsequent cases of the same Court. On the other hand, the dissenting judgment pronounced by Jwala Prasad, J. has been followed in various other Courts as well as in later decisions of the Patna High Court. It will also be seen that in this case the Court was confined to the interpretation of the word `complainant' as it then stood in sub section (8) of section 526 of the Code. That section had undergone legislative amendment, which we will show hereafter.
Subsection (8) of section 526 of the Code of Criminal Proce dure, prior to its amendment in 1932, was couched in the following terms:
"If, in any criminal case or appeal, before the Commencement of the hearing, the Public Prosecutor, the complainant or the accused notifies to the Court before which the ease or appeal is pending, his intention to make an application under this section in respect of the case, the Court shall exercise the powers of postponement or adjournment given by section 344 in such a manner as will afford a reasonable time for the application being made and an order being obtained thereon, before the accused is called on for his defence, or, in the case of an appeal, before the hearing of the appeal."
By the Amendment Act XXI of 1932., the said subsection was amended and re‑enacted as quoted above.
Thus, we find that, instead of the words "the Public Prosecu tor, the complainant or the accused," the amended subsection has used the words "any party interested."
In the case of Sir Rajendranarayan v. Bhagaban Mahapatra (A I R 1947 Pat. 166), Sinha, J. did not follow the opinion of Mullick, J. as expressed in the aforesaid case. In this case a criminal case was started on an allegation of misappropriation of a certain sum of money. At the instance of X his agent Y lodged a first information report which eventually led to the prosecution in which Y was ultimately made an accused. Thereafter X moved an application under section 526 of the Code. Sinha, J. repelled the argument at the Bar as to the competency of the application for transfer on the ground that the petitioner had no locus standi to move the application. At page 167 of the report Sinha, J. made the following observations:
"Ordinarily the complainant or the Public Prosecutor or the accused are parties interested in the result of a criminal case. But, as already indicated, in this case the first informant has now come to occupy the position of one of the accused. He was an agent of the petitioner when he lodged the first information before the police. There can be no doubt that the information was lodged before the police at the instance of the petitioner, though not by him personally, but by one of his employees. In the special circumstances of the case, in my opinion, the petitioner does fulfil the requirements of the law inasmuch as he is a "party interested." In that view of the matter, I would overrule the preliminary objection as to the maintainability of the "application for transfer."
In a number of decisions of various High Courts of this sub‑continent persons injured by certain criminal acts have been held to be "party interested" in the trial of the accused, within the E meaning of section 526 of the Code, and so also a complainant, even in a cognizable case, has been held to be entitled to apply for transfer under the said section.
In the case of Bagh Ali v. Muhammad Din (I L R 6 Lah. 541), it was held that an informant, even in a cognizable case, was entitled to move an application under section 526 of the Code.
In the case of Emperor v. Dhana (39 Cr. L J 853), Abdul Rashid, J. also took the same view as stated above. He has further observed that in a case where the Public Prosecutor opposes the application, the views of the Public Prosecutor ought to prevail against that of a private complainant.
In the case of Abdul Naseer v. Emperor (39 Cr. L J 33), a Bench of the Allahabad High Court took the same view.
In the case of Sardar Shah v. Gurdit Singh (36 Cr. L J 222), Agha Haidar, J. has held that the language of section 526 (3) of the Code is sufficiently wide and comprehensive and a person who has lodged the complaint and moved the machinery of the police and the Criminal Courts continues to be a party interested and he is entitled to move the High Court in certain circumstances for the transfer of the case.
In the case of Brahmdutt v. State (51 Cr. I. J 1291), which is a decision of the Allahabad High Court, Raghubar Dayal, J. has made the following observations at page 1292 of the report:,
"I do not see any reason why Brahmdutta has a grievance against the transfer of the case of Lalta Prasad and Banarsi Das. Those accused wanted the transfer of their case. The transfer was not objected to on behalf of the State. A third person has no right to object to the transfer of a case. He may, in certain circumstances, be considered to be an interested party. Even then his objection to the transfer of the case will not get precedence over the desires of the two main parties to the case, namely the accused and the State."
Thus, in the aforesaid case it was held that even a third person, in certain circumstances, may be considered to be a "party interested" within the meaning of section 526 of the Code.
In the case of Ghulam Rasul v. Emperor (A I R 1941 Lah. 299), a Bench of the Lahore High Court has held that a complainant, who received some injury, which led to the prosecution under section 326 of the Penal Code, was a competent person to maintain an applica tion for transfer under section 526 of the Code. In the aforesaid case during certain election the complainant received an incised wound on his shoulder and the accused persons were prosecuted by the Crown under section 326 of the Penal Code and other sections thereof. The complainant sought transfer of the case after two witnesses were examined. The Magistrate trying the case owned land in the village of which the complainant was a Lambardar and they had taken opposite sides in the election. The application was opposed by the Crown, Skemp, J. has made the following observations at pages 300‑301 of the report
"It is the complainant who seeks transfer and, as I have frequently said, a complainant's application should be scanned more narrowly than that of an accused pea son. An accused person apprehends conviction and a complainant that his enemy will go free. However, in this case, it is reasonable that the complainant should desire the punishment of the person who inflicted the wound and in the interest of public justice it is desirable that that person should be punished. The complainant sought transfer after only two witnesses had been examined. It is at the very least clear that the Honorary Magistrate owns land in the village of which the complainant is a Lambardar and they took opposite sides in the recent election. In such circumstances it is not desirable in my opinion that the case should be tried by the Honorary Magistrate. The Crown opposes the application and counsel for the Crown and for the accused set forth the proposition that where there is a conflict between a private complainant and the Crown as to transfer, the right of the latter must prevail. The following cases were quoted: 4 Pat. L J 656 Jamuna Kanth v. Rudra Kumar, 6 Lah. 541 Bhag All v. Muhammad Din, A I R 1934 Lah. 612 Sardar Shah v. Gurdit Singh and A I R 1938 Lab. 569; Emperor v. Dhana. The three cases in this Court were all Single Bench cases, the Patna case was a Division Bench. The petitioner in the Patna case was one of the persons injured in a riot case who had complained to the police. Mullick, J. held that he had no locus 3tandi under section 526, Criminal P. C. Jwala Prasad, J. held that he had locus standi, but his right was suborbinate to that of the Crown. The Crown had strongly opposed the appli cation both upon the point of law and on the merits and Jwala Prasad, J. also held that there was no case for transfer on the merits.
"The point was slightly different in 6 Lab. 541 Bhag Ali v. Muhammad Din. There the District Magistrate on the appli cation of the accused had transferred the case to another Magistrate without notice to the complainant. The complain ant came to the High Court and counsel for the accused raised the preliminary objection that a private complain ant was not competent to apply for a transfer. The appli cation was not opposed by the Crown. The applicant's counsel did not ask for a transfer but urged that the order of the District Magistrate was illegal being made without notice. Zafar Ali, J. dismissed the petition for revision and suggested that if the complainant had doubts about the impartiality of the new Magistrate he should make an application to the District Magistrate. On the facts this case is not an authority for the proposition. In A I R 1934 Lah. 612 Sardar Shah v. Gurdit Singh, Agha Haidar, J. quoted A I R 1926 All. 307 Emperor v. Bhik Chand as follows:
"In a charge of this nature which is instituted on a police report and in which the prosecution is in the hands of the Public Prosecutor exceptionally strong grounds would have to be shown before this Court would exercise its power of trans fer at the instance of a private complainant when the responsible authorities are satisfied that there is no ground for withdrawing the case from the Court which is hearing it."
"Agha Haidar, J. accepted this view of the law and I res pectfully agree. He held that there was no case for transfer on the merits. In A T R 1938 Lah. 589 (sic) Emperor v. Dhana, Abdul Rashid, J. purporting to follow 6 Lah. 541 Bhag Ali v. Muhammad Din said that the rights of the complainant in a cognizable case were subordinate to those of the Crown. He held that there was no case for transfer on the merits. In all four cases the proposition was no doubt laid down, but in 6 Lah. 541 Bhag Ali v. Muhammad Din, the point was really different and in the other three cases it was held that on the merits there were no good grounds for transfer. In the present application, on the contrary I think there are good grounds for transfer. "
In our opinion, a person injured or aggrieved by the crime, a witness in the trial, an informant or a complainant on whose information the machinery of law is set in motion, would, under certain circumstances, come within the description of "any party interested" within the meaning of section 526, subsections (3) and
(8), of the Code. The category stated above is by no means exhaustive. Of course, a Public Prosecutor, a complainant or an accused will always come under the aforesaid description.
In the case before us the injured person is dead. If the father of the deceased bad been alive and had made an applica tion for transfer of the case, we would have held that he was certainly a 'party interested' within the meaning of subsections (3) and (8) of section 526 of the Code. The father of the deceased was already dead before the alleged occurrence. The petitioner is the brother of the father and an uncle as well as guardian oft the deceased. The petitioner claims that he has been responsible for the upbringing of the deceased and, in fact, he was maintain ing the deceased and looking after his education. He stands in loco parentis to the deceased and seems to have taken a keen interest in the prosecution of the accused. He is also an Important witness in this case. It would be doing violence to the plain meaning of the words in the aforesaid subsections to hold that be was not a party interested in the prosecution. Technically speaking, the State as the prosecutor in every criminal case and the accused persons, are directly interested in and con cerned with the case. But a witness or the complainant in a case will also be an interested party, though not directly so. A person in the position of the petitioner is, in our view, a party interested within the meaning of section 526 of the Cede. It is difficult to define the category of persons who will come within the meaning of the expression "party interested in the case". It has to be decided on the facts and circumstances of each case and the position of the complainant with regard to the case itself. As we have already stated, we find no difficulty in holding that the present applicant is competent to maintain the application for transfer. In any event, since we have issued a Rule in this case, we can suo motu pass an appropriate order under section 526 of the Code. This proposition is not contested by learned Advocate for the opposite parties in view of the fact that the said section specifically empowers us to do so.
Mr. Ahmadur Rahman Khan has further argued that in a case where the application for transfer under section 526 of the Code is opposed by the Public Prosecutor, the views of the latter must prevail.
In this case, however, the Public Prosecutor has not appeared before us to oppose this application. So far as we are concerned, there is no opposition either on behalf of the State or by the Public Prosecutor. We bad asked the learned Deputy Legal Remembrancer, upon whom notice was served by the applicant before the application was moved in this Court, as to whether be bad received any instruction with regard to the present applica tion. He stated that he had no instruction either to oppose or to support it. It is thus clear that it would not be correct to say that the application before us is opposed by the Public Prosecutor.
It, however, transpires from the order recorded by the learned Additional Sessions Judge that, at the time when the petitioner filed an application for adjournment, the Public Prosecutor opposed the said application. The petitioner bas categorically stated in his petition that there was no such opposition by the Public Prosecutor and, in fact, Mr. Ataur Rahman Khan, who appeared before us on behalf of the petitioner, asserted that if he was given further time, he would be…
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