Patna High Court
Md. Yasin And Ors. vs The State on 27 January, 1954
Equivalent citations: 1954(2)BLJR196, AIR 1954 PATNA 437
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Imam, C.J.
1. This is an application to quash certain proceedings pending against the petitioners, or, in the alternative to transfer the case from the file of the present Magistrate.
2. So far as the matter of quashing is concerned, the learned counsel for the petitioners did not press that matter so earnestly as the question of transfer, because if he succeeded on the question of transfer he would place the submissions on behalf of the accused before the Court below in support of the contention that the accused should have been discharged, as there was no evidence upon which the charges could have been framed against them.
3. On the question of transfer Sir Sultan Ahmad has based his submissions for transfer largely on the ground that the present Magistrate has been very slow in his work and that he did not enforce his judicial authority to secure the attendance of witnesses in time and allowing the case to take an unreasonably long time for disposal. He further poinbed out that when the accused were examined by the Magistrate under Section 342, Criminal P. C., the Magistrate put certain questions to the accused which were given to him in writing by the prosecution and that the Magistrate put several questions simultaneously to the accused and demanded answers for all of them at one time, with the result thai the accused were confused and could not reply to the questions put to them. He further made reference to an interpolation in the order-sheet of the Magistrate, order No. 249, dated 2-1-7-1953. If these various matters were taken into consideration the cumulative effect of them would be for the accused to entertain a reasonable apprehension that they would not receive a fair trial at the hands of the Magistrate.
4. On 14-11-1949, a first information report was lodged against the accused involving serious offences. On the 12th of May, 1951, an application for the withdrawal of the case was filed before the Magistrate and permission was granted. The accused, however, were immediately arrested on the same day because it was discovered that there was some technical defect in the application for the withdrawal of the case. On 30-8-1951, the Inspector of Police of Patna Sadar submitted a fresh charge-sheet against the accused and the District Magistrate of Patna took cognizance of the offence on 1-9-1951. It is unnecessary bo take for the purpose of this application as to what transpired between 1-9-1951 and 8-12-1951. On 8-12-1951, however, summonses to witnesses were issued and the idea was to examine certain number of witnesses per day.
One of these witnesses was Phulena Singh. The hearing of the case before the Magistrate commenced on 4-2-1952, and it has not yet ended. The magistrate adopted the procedure for enquiry before commitment but ultimately he decided not to commit the case to the Court of Sessions but to try it himself. He consequently discharged some of the accused persons and framed charges against others on 10-8-1952. It will be apparent from the few dates which I have given that even if one takes the starting date for the present proceedings against the accused as 1-9-1951, it is a matter of great concern, if not alarm, that criminal proceedings against an accused persons should be so long delayed before a Magistrate. An examination of the ordersheet clearly discloses undue delay in the disposal of the case and instance after instance of witnesses not appearing before the Court on the dates fixed.
Obviously, the Magistrate does not appear to have been able to control the proceedings and appear to have given undue latitude to witnesses who disobeyed the summons of the Court. In this respect at any rate, in my opinion, the Magistrate has given evidence of his incompetence in dealing with the proceedings before him. The case of the witness Phulena Singh was particularly mentioned and I am satisfied on what I have seen of the record that if the Magistrate had really taken a strong attitude in the matter the enormous delay in securing the attendance of this witness might well have been avoided. As I have said, he was a witness who was summoned on 8-12-1951, and for various reasons, which seem to me to be inexplicable, he failed to appear and ultimately on 13-12-1952, he was given up as a prosecution witness.
However much the prosecution may urge that a Court cannot be blamed if witnesses do not turn up, I think it is the bounden duty of a Court to see that its orders are obeyed, and anyone guilty of disobedience of the orders of the Court should be proceeded against according to law. The Courts are not powerless or helpless in this matter and a Court should take action where there is no reasonable explanation for disobedience of its orders or the ignoring of its summonses. I am indeed surprised at the latitude shown by the Magistrate, and the submission made on behalf of the accused that the manner in which the Magistrate has controlled the proceedings leads to the conclusion that he is giving undue advantage to the prosecution is not without substance.
5. To me, however, the more grave ground for holding that the case against the petitioners should not be in the hands of the present Magistrate is the manner in which he examined the accused under Section 342, Criminal P. C. In all my thirty-two years of experience of the law of this land I have not come across a single instance where the presiding judge whose duty it is to examine an accused under Section 342 of the Code, permitted questions to be supplied to him by the prosecution and to put those questions, or some of them at any rate, to the accused. This was never intended to be the procedure for examination of an accused under Section 342 of the Code.
The real purpose of examination of an accused under Section 342 of the Code is for the Court to xplain to the accused the circumstances appear-ng against him on the evidence and to enquire of him as to what he would like to say about them. It was never intended by the legislature, I am sure, that the Court should not frame its questions on its own initiative but should depend upon questions to be supplied to it by the prosecution. Furthermore, it has been understood for many years that an examination of an accused person under Section 342 of the Code is not to be a cross-examination of the accused, nor was it ever intended that the examination at the instance of the prosecution should be to supply answers in order to fill in a lacuna in the evidence. Where a Court puts questions to the accused at the instance of the prosecution it could not be said that the accused were unreasonable in apprehending that they would not have a fair trial at the hands of that Court.
Quite obviously, to put any questions to the accused, questions which were supplied by the prosecution, would tend to indicate to the accused the partiality of the Court in favour of the prosecution. Such conduct on the part of the Court is against all principles and display lack of judicial direction in a criminal trial. Further, to put the questions simultaneously and in a manner which makes the accused person not understand the implications of the questions is also a matter which was never intended by the legislature when it framed Section 342 of the Code. The allegations made in the petition in paragraphs 22 and 23 are substantiated by what I have seen of the record. The matters mentioned in these two paragraphs are, to my mind, good grounds of transfer.
6. So far as the interpolation in the ordersheet of the 24th of July 1953, is concerned, we have been shown a copy supplied by the Copying Department of the Court, and in that copy the words "as Nageshwar Babu is not free before that" do not appear. Application for the copy of the order-sheet was made on 29-7-1953, and the copyist typed it on the 6th of August, 1953, and it was compared on 11-8-1953. The original order-sheet, however, contains these words which could not have been there when the copy of the order-sheet was prepared by the Copying Department. The original of the order sheet also shows that these words have been inserted between two lines and are obviously an interpolation. The motive for such an interpolation might be, as suggested on behalf of the accused, to support the contention of the prosecution that the delay that has taken place in the disposal of the case was not necessarily due to the fault of the Magistrate or the fault of the prosecution.
Be that as it may, it is a matter not to be tolerated that Courts should alter their order-sheets, . Such a practice is a dangerous one and can lead to unforeseen consequences. It is entirely undesirable that a Magistrate should make interpolations in his order-sheet on some subsequent date. One can understand that when one reads the order-sheet before one signs if some clerical mistakes are noticed or grammatical mistakes are noticed and they are corrected; but deliberate interpolation in an order-sheet is unjustified, and a Court which does such a thing opens itself to very severe comment. I think myself from what has been placed before me that some enquiry should be made as to whether the interpolition in question is a 'bona fide' one or was one made with ulterior motives. For the moment I am unable to say one way or the other.
7. Having considered the matter from all its aspects, I am satisfied that to allow the present proceedings to continue before the present Magistrate would be altogether wrong. The case is almost concluding and it is unfortunate that an order of transfer has to be made at such a late stage, but having regard to the circumstances there is no other course open to this Court. Sir Sultan Ahmad has stated on behalf of his clients, the petitioners, that they will not claim a 'de novo' trial, and I understand that in fact almost all the prosecution witnesses have been examined and what is left is for the defence to cross-examine such witnesses as they may wish to recall for that purpose after the framing of the charges. Even if the case is transferred now, it cannot take any undue length of time before a new Magistrate. I would accordingly allow the application and send the case to the Sessions Judge of Patna, who will transfer it to a competent Magistrate at Patna for disposal according to law.
Das, J.
8. I agree and wish to make a few observations With regard to the inordinate delay made in this case -- a delay which, in my opinion, is nothing short of a scandal, involving, as it did, an avoidable waste of much public time and not an inconsiderable amount of public money. The case originally began on an information lodged on 14-11-1949. That case was permitted to be withdrawn and cognizance was taken afresh on a charge-sheet submitted on 30-8-1951. The case came to Sri Chandra Mauleshwar Prasad, Special Magistrate, on 12-9-1951, and the proceeding commenced before him on 4-2-1952. Thereafter followed a tale of absent witnesses, piecemeal examination of witnesses and arguments heard off and on, spread over a period of several months. In the petition which has been filed in this Court the petitioners have referred to the main causes of delay in paragraphs 18 and 19 of their petition. I should like to quote those paragraphs 'in extenso' in order to show how lax the conduct of the proceeding has been before the learned Magistrate. Paragraph 18 reads :
"18. That originally on 8-12-51 witnesses were summoned at the rate of five per day. On 7-5-52, as there was dearth of witnesses, the number was increased to seven. On 20-6-52, as witnesses were still not turning up, the learned Magistrate increased the number to ten per day. On 27-6-52 on the request of the Special Public Prosecutor, the Court reduced the number to seven per day. On 1-7-52, on the request of the Special Public Prosecutor, seventeen witnesses were summoned at the rate of two per day from 20-8-52. On 20-8-52, however, only a few lines of deposition were recorded. On 21-8-52 there was no work. On 22-8-52, only one and one-fourth pages of deposition were recorded. On 23-8-52 no work was done. On 28-9-52 three and a half pages of deposition were recorded. On 29-8-52 five pages and on 30-8-52 four pages of deposition, were recorded. The statistics have been roughly calculated on the basis of the certified copies."
Paragraph 19 is in these terms :
"19. That on 20-6-52 and 2-8-52 the learned Magistrate ordered that since the service reports of the summonses of the witnesses were not being : received, he would not take any further action for their attendance. On 20-8-52, however, the learned Magistrate went back from his previous order and directed the resum-moning of these witnesses even in spite of the objection of the petitioners. On 17-9-52 one such witness, Ram Kripal Naik, who had already been summoned twice before, did not appear and his service return, which was issued Dasti to the Special P. P. was not received and even in spite of a petition by the defence the witness was summoned again. On 6-11-52 three witnesses did not turn up and the service reports were not received and although the Court had ordered previously that in case they do not turn up on this day they will have to be given up, still, at the instance of the prosecution, they were summoned."
Many of the facts stated in the aforesaid paragraphs appear to be substantiated on the materials in the record. A number of witnesses were summoned; the service reports with regard to the service of summonses on them were not received; fresh summonses on them were not received; fresh summonses with a new order of the examination of witnesses were issued; again service reports were not received; warrants of arrest were made over personally to the Public Prosecutor, the service reports of those warrants were not received. This is the way in which the case was conducted before the learned Magistrate. It is needless to point out that no case can terminate unless the Magistrate exercises a strict control over the proceedings, and there is co-operation from the pro-secution as well as from the defence. It has been stated at the bar that about 200 witnesses have been examined in the case. There is no doubt that the case is a big one; but even a big case must come to an end at one time or another.
If service reports of the processes issued against witnesses are not received, the Magistrate is not powerless; he can take action against those who are responsible for effecting processes issued by the Court. There is nothing in the record to show that the Magistrate took strict steps to enforce the attendance of witnesses or to enforce timely action by those who were entrusted with the service of processes issued by the Court. The Special Public Prosecutor should have brought it to the notice of the Magistrate for necessary action if those who were entrusted with the service of processes did not do their work properly and satisfactorily. Special Public Prosecutor was appointed in the case, and unless necessary action is taken against those who were responsible for serving processes on absent witnesses, the time and money spent in the case would be spent in vain.
9. I am making these observations so that when the case goes to the new Magistrate there may be a stricter control over the proceedings and more co-operation in the matter of securing the attendance of witnesses.