Patna High Court
The King vs Harihar Singh And Ors. on 6 September, 1948
Equivalent citations: 1949CRILJ483, AIR 1949 PATNA 230
ORDER
1. This rule was issued in consequence of it having come to the notice of this Court that the trial of a criminal case, in which the police submitted a charge-sheet as long ago as 6th March 1947, has not been completed and the proceedings are being held up indefinitely under an order of Provincial Government.
2. The facts are as follows: Some 200 bighas of land were in possession of the Sathi Eothi under a lease from the Bettiah Raj, which is under the management of the Court of Wards. On the expiry of the Eothi's lease, the accused, who claim to be hundadars under the Kothi, made a written application to the Manager of the Bettiah Raj for settlement of the land with them as they were in possession. The land, however, was settled with one Bai Bahadur B. P. Babi, who was then Excise Commissioner. The persons claiming to bothe hundadare protested against this to the General Manager and to the public autherities. It appears that it was apprehended that there might be a breach of the peace and that a military force was sent "down to maintain order. On 24th January 1917, a first information report was lodged by one Jugeshwar Tripatbi, describing himself as the karpardaz of E, P. Sahi, alleging that the accused had com. mitted rioting and other offences in an attempt to oust Sahi. A charge-sheet was submitted by the police on 5th of March 1947, alleging the commission of offences under Sa. 148, 324, 825 and 836, Penal Code, against a large number of persons. The accused, who were in custody, applied to the Sessions Judge for bail and some of them were released on furnishing bail. These to whom bail was not granted applied to this Court and were granted bail. The learned Judge who dealt with the application observed, in the course of this order: "I am unable to under-Btand why the trial has not yet commenced and why it has been thought necessary to detain the petitioners in hajat". It was not until the 13th of June that the trial actually commenced, when some of the proseoution witnesses were exami. ned.in-chief. On that day an application was made ito the Court by the first informant asking leave to withdraw the case as it was alleged that the dispute had, by agreement, been refer-red to a certain person for settlement. The Magistrate, instead of rejecting the petition, as he should have done, because a first informant has no right to withdraw a case that has been sent up by the police, forwarded it to the District Magistrate, with the record, "to pass orders, if any". By this order, the trying Magistrate appears to have abdioted his functions and to have left it to the District Magistrate to decide whether the application should be accepted or rejected. What action the District Magistrate took on this does not appear from the order, sheet, but on 7th July more prosecution witnesses were examined-in.chiof, and the oaBe was adjourned until the 23rd. On that day the Magistrate received two telegrams signed "Bihar" which, we understand, is the telegraphic signature of the Bihar Government. The first of these stated: "Government desire that Sathi cases coming up for hearing on 23rd instant be adjourned." The second telegram Btates: "Sathi cases may be kept pending till further orders." If the District Magistrate was aware of any grounds on which an adjournment of the trial could have been legitimately asked for, he should have instructed the Public Prosecutor to ask for an adjournment. Instead of doing that, the District Magistrate Bent copies of the telegram to the Sub-divisional Officer with instructions to communicate the contents to the trying Magistrate, The latter without making any attempt to ascertain why an adjournment was desired, or whether there were any grounds for it in fact, without exercising his judicial discretion at all, and without giving the accused an opportunity of objecting to the adjournment postponed the hearing of the case until 14th August, stating in the order-sheet: "Prosecution witnesses to be summoned again when needed". For the next three weeks nothing happened. On 6th of September, the accused made an application for a date to be fixed for continuation of the trial. The Magistrate passed the following order: "No Government order has been received as yet in this connection. Case is, therefore, adjourned to 26th September 1947." No orders had been received by the last mentioned date, and the Magistrate submitted the record to the District Magistrate with a request to obtain the final decision of Government as to whether the case was to proceed or was to be withdrawn. Thereafter, some 15 adjournments took place, in every case the reason given being that no orders bad been received from Government, and so the matter dragged on until April 1948, when, it appears, even the conscience of the District Magistrate began to be disturbed by what was taking place, and it seems that he proposed to withdraw the prosecution. At this stage the Commissioner of the division saw fit to intervene and prevent this being done. No further action appears to have been taken until 1st June, when the order-sheet records the following;
No order from the Government received a a yet, though reported the matter to the District Magistrate. I learnt from the District Magistrate personally that he had reported about the -withdrawal of this case to Government but no order was received. Await and pat tip on 1st of July 1948.
As no orders had been received by 1st July, the case was again adjourned until 1st August, and so but for the fact that the accused had been'released on bail they might have been kept in detention until the end of their natural lives and the case might have remained pending until the end of time but for the f Act. that the matter came to the notice of this Court on the administrative side, and this rule was issued to the District Magistrate and the first informant, calling upon them to show cause why the trial should not proceed at once. As it was considered desirable that the Provincial Government should have an opportunity of explaining its unwarranted intervention in the matter, notice was also issued to the Advocate-General.
3. The Advocate-General then appeared and informed us that be was instructed on behalf of the Provincial Government to assure the Court that Government had no intention of interfering with the course of justice, but that what was intended was that the District Magistrate should cause an application for postponement to be made to the trying Magistrate in the normal way, that is to say, through the Public Prosecutor. He has also informed us that Government does not propose to withdraw the prosecution but to proceed with the trial.
4. On behalf of the District Magistrate, the Advocate-General informs us that he has been instructed to say that the District Magistrate regrets the action he took on the Government telegram and to assure the Court that it was due to his mistake that he did not instruct the Public Prosecutor to apply for an adjournment.
5. be far as the Government's explanation is concerned, we cannot refrain from expressing our surprise at its total inadequacy. If it was merely Government's intention that an application for adjournment should be made in the normal manner, why were the District Magistrate and the Public Prosecutor not furnished with the reasons why an adjournment of the trial was desired ? The granting of an adjournment is in the discretion of the Court, and the Court is not expected to adjourn the trial of a criminal case without adequate reasons. Unless they are informed why an adjournment is desired neither the Dietrict Magistrate nor the Public Prosecutor is in a position to furnish the Court with any valid grounds for adjourning the trial Ex facie this was a prosecution arising out of an ordinary agricultural dispute, of which there always are hundreds pending in the Courts. What was it that rendered it desirable in this particular case that Government should interfere to prevent the trial from proceeding in due course ? Even at this stage of the proceedings, we have not been informed why it was considered desirable to have the bearing of this case adjourned, or at whose instance, or in whose interest this extraodinary step was taken. It was certainly not in the interest of the accused persons as their application of 6th September 1947 shews. Furthermore, the second telegram, which was despatched on the same day as the first, negatives any suggestion that Government merely contemplated that an application for adjournment should be made in the ordinary manner. That telegram is an unequivocal direction that the case was to be kept pending "till further orders," of Government. What right had Government to interfere with trial of the case by issuing directions that it was to be kept pending until it was pleased to permit it to proceed ? The conduct of a case is in the hands of the Court and not in the hands of the State even when the State is a party as prosecutor. No party to a litigation has any right to dictate to the Court how it shall conduct the proceedings. Still less has it a right to hold up a trial indefinitely without even consulting the convenience of the other Bide. This is not the only case of this kind. It is time the Government of Bihar and its officers realized that in the Courts of Justice of this Province they have no privileges which are not secured to them by statute. Their position in the Courts is precisely the same as that of any other litigant and no interference will be tolerated. It is a monstrous thing that some amorphous individual or body of individuals, hiding behind the name 'Bihar' on a telegram, should have the temerity to interfere with the right of the citizens of this country to have charges preferred against them tried with all possible expedition. It is not only necessary that the administration of justice shall be free from interference from the executive and its officers, but also that there shall be no ground for suspicion that there may be such interference. When it is found that persons accused of criminal offences are, by order of the Government, deprived of their right to an early opportunity of clearing themselves; when the executive head of the district lends himself to carrying out such orders; when the commissioner of the division intervenes to see that the orders are obeyed; when the trying Magistrate is be oblivious of his duty to the accused as to acquiesce in these actions; and when no explanation is offered of the reasons which led to Government's orders being issued, it is not necessary to be a cynic to wonder what reliance can be placed on an assurance that it was not the intention of Government to interfere with the course of justice.
6. From the point of view of this trial itself the result of this unconstitutional act on the part ilpvernment cannot but have the most unfortunate effect since we are told that it is now proposed to proceed with the prosecution. The occurrence is alleged to have taken place in January 1917. Only some of the witnesses have been examined in chief. Even they have not yet been cross-examined. Almost two years have elapsed ainoe the events to which they are to depose. Their memories cannot be expected to be as fresh as they were immediately following the alleged occurrence. The liberty of the accused persona is now to depend on the appreciation of evidenoa which must necessarily be dimmed by efflux of time.
7. As to the conduct of the District Magistrate in this connection, it is deplorable that the administrative head of the district should be so oblivious of his responsibilities and duties as to be a party to such an interference with the ad-ministration of justice as we have in this case. Where are the safeguards for the liberty of the citizens of this country, if a District Magistrate, to whom all other Magistrates in the district are subordinate, has no compunction in passing on to a Magistrate trying a case instructions which interfere with the exercise of the latter's judicial discretion and which might result in a large number of persons being kept indefinitely in de. tention pending trial? Surely an officer, with the experience which a District Magistrate should have, is expected to inquire on what grounds an adjournment is required and for how long, and then to proceed according to law. It is regret, table that the history of this case makes it necessary to issue a warning that any District Magistrate, or, for that matter, any other person, who interferes or attempts to interfere with the exercise of the discretion or proceedings of the presiding officer o a Court, will be called upon to answer to this Court for his conduct.
8. As to the trying Magistrate, his complacency in this deplorable affair shocks the con-soienoe. A person fit to preside over a Court of justice should at least have the courage to resist any improper attempt to interfere with his discretion or influence) his decision and should realize his responsibility to see that parties appearing before him have a fair trial and are not unduly harassed. No one can be unaware of,the external influence to which many public officers are unfortunately subjected at the present time, but in the case of these entrusted with the administration of justice, the existence of such influences cannot be recognised as an excuse for any action which may endanger the liberty and rights of the ordinary citizen.
9. Taking into consideration all the circum-stances of this case and in order to dispel any apprehension that the accused persons may have, we commit this case for trial to the Court Session at Motihari with the direction that as early a date as possible be fixed, taking into consideration that the charge-sheet was submitted as far back as 5th March 1947.