Patna High Court
Jailal Jha And Ors. vs Emperor on 24 April, 1923
Equivalent citations: 81IND. CAS.602, AIR 1923 PATNA 537
JUDGMENT John Bucknill, J.
1. This was an application in Criminal Revisional Jurisdiction made by three persons who have been convicted under Section 297 of the Indian Penal Code, that is to say, of having ploughed up two cottahs of graveyard situated in the village Rasula, thereby wounding the feelings of the Muhammadans of the tillage of Pura who used this plot of ground (which is No. 73 in the Survey) as their burial ground. They were sentenced each to six months rigorous imprisonment on the 2nd February last by the Deputy Magistrate of Darbhanga. The District Magistrate of Darbhanga dismissed an appeal made to him on the 12th March last. The matter then came before this Court and a Rule was granted by their Lordships the Chief Justice and Mr. Justice Mullick on the 23rd ultimo; it has now come before me.
2. There are two principal points which have been placed before me and upon which it is requested that I should exercise the revisional jurisdiction of this Court. The first point is that the decision of the District Magistrate was not in accordance with law because it did not in any way deal with the evidence which had been adduced by the accused in their defence. The second, point is with regard to the effect and validity of a local inspection which was made by the Deputy Magistrate. I think that in view of the opinion to which I have come with regard to the latter of these two points (a view which I may at once state necessitates, in my opinion, a trial de novo of the accused) it is unnecessary for me to say more with regard to the first point than that it certainly does appear that the District Magistrate does not in his decision make any mention of the evidence which had been brought forward by the accused in their defence. The other matter, however, is a much more serious one. The question which was indeed of primary importance in coming to a proper conclusion as to whether the accused were guilty of the offence with which they were charged, was as to whether the land, which is said to have been ploughed up by the accused, was or was not really a burial ground. Now, the Deputy Magistrate, with no doubt the best of intentions, thought fit to hold, what he calls, a local inspection but what I should venture to designates necropolitan exploration. He appears to have gone accompanied by Pleaders representating both parties to the locality where there assembled a large crowd of some 400 onlookers, and not content with viewing the physical features of the locality, proceeded to have the ground removed at various spots which were pointed out to him, He unearthed, according to what I suppose one must call his evidence, two small bones which he thought were human "collar bones"; how he knew they were, I cannot say, nor does he tell. He also found some matting and some piece of bamboo. Upon these discoveries he has in his judgment much to say and he there enlarges upon the importance of his digging and is obviously deeply impressed by his excavations. I must admit that I think that this proceeding was entirely irregular. It was not legally in order for the Magistrate to have excavations conducted at his command in his presence so that he personally could try to form an opinion visually, whether there Avere underground any graves on the property in question. It certainly does not seem to me that it was open to the Magistrate to embark upon any such kind of investigation. If he had desired to have very sure evidence as to whether this land was a graveyard it is possible that an investigation of the character which he himself conducted personally and as to the results of which he himself in effect gave evidence might have, with due reverence, been carried out by properly qualified official persons and their evidence in Court after-wards might have been of great assistance and value to him. But I have no doubt whatever, here, that, although as I have said, this excavation or investigation was carried out with the best possible intention, the action of the Deputy Magistrate was altogether legally invalid.
3. To one's personal regret but doubtless, for the public good, Judicial Officers cannot and are not legally permitted to find out for themselves the facts of a case; they have to decide it on the evidence properly produced before them a lesson which cannot too often be reiterated. Now, it may be said that what he did has not materially affected the position of the accused, but I think, that in this case it woxild "be extremely unsafe to say that the conclusions to which the Deputy Magistrate came, were not affected very materially by what he himself did. To my mind it is quite obvious that the finding of these two pieces of bones (which he says are collar bones), mats and bamboo impressed him very strongly with the idea that the excavation indicated that there were graves of human beings on the spot. I do not think that it is possible, after reading his judgment, to come to any other conclusion than that his own zealous and no doubt interesting exploration affected his decision very materially. I am very far from suggesting that there was no other evidence implicating the accused, besides that of his own explorations, but it is only right that the accused should have the opportunity of being tried a fresh in view of the fact that the worthy, but I fear, illegal action of the Deputy Magistrate may have and, in my opinion, did prejudice their position. The convictions and sentences passed by the Deputy Magistrate will, therefore, be set aside. The accused should be tried de novo and not by the same Magistrate. They must remain at liberty on the same bail as hitherto.