Ajo Mian and Others vs Emperor

Bucknill, J.—This was an application in Criminal Revisional Jurisdiction made on behalf of six Muhammadans. The first was found guilty by a Magistrate of the first class at Bhagalpur on the 23rd December last of an offence punishable u/s 326, I.P. C (causing grievous hurt with a dangerous weapon); he was sentenced to one year''s rigorous imprisonment. He was also found guilty of an offence, punishable u/s 148, I.P.C. (rioting armed with a deadly weapon.) For this offence he was again sentenced to one year''s rigorous imprisonment; the sentences were to run consecutively. The other five applicants were all found guilty firstly, of an offence punishable u/s 147, I.P.C. (riot) and secondly of an offence punishable under the combined provisions of Sections 326 and 149, I.P.C. that is to say of causing grievous hurt with deadly weapons whilst members of an unlawful assembly. The object of the unlawful assembly was stated to be to assault Hindus. The second applicant was in respect of each of these offences sentenced to undergo rigorous imprisonment for one year; but the sentences have been ordered in his case to run concurrently. The other applicants were sentenced to six months'' rigorous imprisonment in respect of each offence and in their cases also their sentences were ordered to be concurrent.

On appeal to the Sessions Judge of Bhagalpur the conviction of the first applicant was set aside in so far as the charge against him u/s 326 was concerned. His conviction and sentence however, u/s 148 was upheld. The convictions and sentences of the other applicants u/s 147 were also upheld but although the convictions under the combined provisions of Sections 326 and 149 were upheld the sentences were set aside in view of the fact that double sentences in respect of such cognate offences were not regarded by the Sessions Judge as being permissible.

The circumstances which gave rise to the prosecution were very unfortunate and were the result of some communal disturbance at Bhagalpur between the Muhammadans and Hindus. It is said that the Hindus were celebrating a festival with considerable ceremony and that the passing of their procession with music and song close to a Moslem Mosque gave some umbrage to the Muhammadans. It is alleged that the Muhammadans attacked some Hindus and injured some of them considerably. We are informed that more than one set of charges has arisen from this affair. It is, however, with the facts of this prosecution, which is the subject-matter of the present application, that we are at the moment concerned.

The learned Counsel who has appeared for the applicants has urged three points before us; the first is that his clients have been the victims of certain illegalities in procedure at the hands of the trying Magistrate. The second is that there was no common object as alleged in the charge, viz., assault of Hindus, but merely an isolated series of encounters for which perhaps individuals might properly be found guilty of specific offences if they were brought home to them. Thirdly, that in the peculiar conditions exemplified in the evidence the sentences imposed are unnecessarily severe.

With regard to the first point it seems clear that after the prosecution case had proceeded for some time, the counsel who was appearing for some of the applicants fell ill; he was assisted by some pleaders who asked for a postponement of the trial on the ground that they were not in a position to undertake the cross-examination of the remaining few prosecution witnesses. The Magistrate, however, who had, from the commencement, intimated his intention to the parties of continuing if possible to hear the case do die in diem refused the application. The result was that some five of the prosecution witnesses including both members of the police force and private persons were not cross-examined. It is not seriously contended that the Magistrate acted either illegally or really unreasonably in what he did; one can only agree with the learned Counsel for the applicants that the attitude of the pleaders who were appearing for the applicants cannot be the subject of commendation. It is obvious that under the circumstances they should have done their best to help their clients, and it would seem that they were not doing so by the attitude which they thought fit to adopt. However, when the accused filed their list of witnesses and applied to the Magistrate u/s 257 of the Cr. P. Code they asked that these five witnesses should be ordered to attend for the purpose of cross-examination. It is quite clear that it is contemplated under the provisions of that section that they had a right to make this application, and indeed it has been laid down in the Calcutta High Court in the case of Sheo Prakash Singh v. Rawlins (1901) 28 Cal, 594, that if the Magistrate in fact does accede to such a request the accused are entitled to cross-examine such witnesses so called to the Court. The section itself, however, gives the Magistrate certain powers to refuse such an application whether it, is the case of a witness who is desired to be called for the defence or whether it is one whom it is desired only to cross-examine. These grounds are either that the application has in the Magistrate''s view been made for the purposes of vexation, or delay or for defeating the ends of justice; and he has to record in writing his decision for his refusal. In this case the Magistrate refused to grant the application for the order that these prosecution witnesses, who had not been cross-examined, should attend for that purpose. In rejecting the application the Magistrate in his order sheet has written, "I have already rejected the prayer to adjourn on that account and see no reason to revise my opinion and grant it now." Had the section rested there, it is possible that the Magistrate could have been rightly said not to have given in writing any ground for his decision which is contemplated by the section as a good ground for his refusal; but there is a proviso to the section which alters the complexion of his action. The proviso to the section is to the effect that, when an accused has cross-examined or had the opportunity of cross-examining any witness after the charge has been framed, the attendance of such witness shall not be compelled under the section''s provisions, unless the Magistrate is satisfied that it is necessary for the purposes of justice.

I think that it is quite clear in this case that the Magistrate was not satisfied that it was necessary for the purposes of justice to compel the attendance of these witnesses; but it is contended that the Magistrate cannot unreasonably say or assume the position that he is not so satisfied. In other words, if, where there exist cogent reasons why the Magistrate should have been satisfied, it is illegal for him to say that he is not; his non-satisfaction must be based on reasonable grounds. It is argued that in this case there were very good reasons for thinking that it was necessary in the interests of justice that these witnesses should be directed to attend for cross-examination.

There can be no doubt that in this case an opportunity was in fact afforded to the accused to cross-examine these witnesses at the proper time: it may not have been possible for the accused''s leading counsel to conduct the cross-examination, but the accused were represented, it is admitted, by other lawyers.

The learned Counsel for the applicants does not contend that the mere fact that an accused''s lawyers declined to cross-examine such witnesses, or that the mere fact that such witnesses were not cross-examined, constitute factors which would justify an argument that a Magistrate''s opinion of satisfaction that under such circumstances it was not necessary for him to order the attendance of such witnesses u/s 257 could be attacked; for to do so would of course be to contend that the proviso to the section was meaningless and that whenever for any reason prosecution witnesses were not cross-examined they must be ordered to attend if application for their cross-examination is made by an accused u/s 257.

What, however, he does urge is that this Court should scrutinize the reasons why the Magistrate was satisfied that the attendance of the witnesses was not necessary and that if it be shown to this Court that there were existing reasons why their attendance was necessary for cross-examination for the purposes of justice, this Court should interfere in its Revisional Jurisdiction and hold that the Magistrate''s refusal was unreasonable and inequitable. I am ready to agree that if a good case was made out that the Magistrate''s refusal was outside the limits of reasonable discretion this Court should and would interfere, but I am sure that that position must be most clearly established (i.e., that the Magistrate''s decision was unreasonable and improper) before the interference of this Court can properly be invoked or expected.

I do not, however, think that in this case any such position has been established. The point was argued at some length before the Sessions Judge who deals with it in his judgment thus:

There remains to be considered the matter of prejudice raised by the appellants. On 15th November 1924, after the framing of the charges, and while the cross-examination of the prosecution witnesses was in progress, a petition was put in on behalf of some of the accused stating that Mr. Hassan the defending counsel had fallen ill and asking for an adjournment. This was refused. On that date some witnesses were cross-examined on behalf of two of the accused, namely Sachidanand Singh, Sub-Inspector, Upendra Mohan Ghose, Inspector Rajendra Prasad, Deputy Superintendent, Muhammad Ahsan, Sub-Inspector, and some others. The pleaders appearing on behalf of the other accused, that is to say, accused whom Mr. Hassan was defending, refused to cross-examine at all. On 19th November, after the prosecution had closed their case, a petition was put in on behalf of these accused to recall the four witnesses mentioned above for cross-examination u/s 257 of the Cr. P.C. This was rejected by the Magistrate. Consequently these four persons were not cross-examined on behalf of the accused for whom Mr. Hassan appeared.

"Section 257 lays down clearly that the Magistrate need not recall witnesses whom the defence have had an opportunity for cross-examining unless he is satisfied that it is necessary for the purposes of justice. The order of the Magistrate accordingly was perfectly legal, nor do I consider that he exercised his discretion wrongly. It is not suggested that the pleaders appearing for the other accused were insufficiently instructed or particularly incompetent, and if it was considered that the counsel appearing for the other accused had not covered the whole ground in his cross-examination; their conduct in refusing to put any questions at all is deserving of reproof. In any case these four officers did not fully implicate any of the appellants except Ajo, Hafiz, Gafoor and Abdul Latif. The rest of the evidence is sufficiently strong against the two former, and Abdul Latif was one of the two men on behalf of whom cross-examination was actually made.

These observations seem substantially to show that the Magistrate''s decision could not have been regarded as unreasonable. Nor has the learned Counsel for the applicants in the course of his able and interesting argument been able to prove to us in what way with certainty his clients'' position was prejudiced or could have been improved by cross-examination of these witnesses: all that he can urge is that it might perhaps have been possible from a cross-examination of these witnesses to have extracted from them something which might have, been of advantage to the accused. But this is not, I think, enough in order to justify this Court''s interference in a case such as this, and on a decision based on the proviso to Section 257, Cr. P.C., it must be shown to this Court not that there possibly, by some chance might have been, but that in fact there was matter to be obtained from the witnesses sought to be called for cross-examination which would have materially affected the result of the trial: as the Assistant Government Advocate has aptly expressed it, the onus is clearly on the applicants to establish that position and I do not consider that in this case they have succeeded in so doing.

With regard to the second point urged by the learned Counsel for the applicants, namely, that there was really no common object as laid in the charge (that is to say of assault on Hindus), he bases his argument upon a close and detailed examination of the somewhat confused phases of what took place on the day of occurrence. He shows that there were a series of not very closely--if at all--connected events on that day: but they had for some little time before been preceded by happenings which had given rise to a good deal of Muhammadan misgivings and chagrin. In the opening words of the applicants'' petition: "For sometime past the relations between the two communities viz., the Hindu and the Muhamrnaidan of Bhagalpur had become strained and the feelings were running very high." The Hindus had, it is said, issued notices to their co-religionists on 21st August 1924 to the effect that it was contemplated celebrating shortly their Janmasthami festival with considerable splendour; and on the 22nd they issued another notice asking that they (the Hindus) should on the following day keep their shops shut and stop business and join the Dadhikado procession which was to take place on the 23rd.

The Moslems seem to have been afraid that they would be insulted in some fashion and went so far as to apply to the Sudder Sub-divisonal Officer at Bhagalpur asking for police arrangements to be made in order to prevent a breach of the peace and that the Sub-divisional Officer should take some preventive measures: the Sub-divisional Officer was a Moslem gentleman he did not take any measures to prevent the procession taking place, but apparently took some police precautions which seem indeed unhappily to have been needed.

On the 23rd, the procession took place: it seems that a large number of Moslems were gathered in and around a large mosque which the procession passed. The procession was guided and shepherded by the police: it was carrying an image of Sri Krishna to the Ganges: some of the processionists carried bamboos with flags. Apparently trouble was only averted as, the procession passed the mosque by the police; for some stones were thrown at the tail of the procession by several Muhammadans. Some of the processionists (the procession is said to have been about 5,000 strong) were beginning to throw stones back and some of them began to jump over the rails at the side of the road and to run back towards the Muhammadans: but the police managed to stop any fracas. The procession went on to the Ganges and then was apparently returning; but it was diverted by another route: some (perhaps 60) Hindus, partly processionists and partly perhaps spectators, were retracing their steps by the route by which the procession had come and drawing towards the mosque; at this stage a number of Moslems, said to be armed with swords, axes and lathis, raised shouts and ran out: the police tried to prevent any outbreak and so also did some very respectable Moslems: they seem to have prevented the Moslems from attacking this party: but some of the Muhammadans (amongst them being, it is said, the applicants) turning back began to knock about any Hindus whom they met, several of whom were witnesses in this case. The applicant No. 1, Ajo Mian, is well identified as being the leader or one of the leaders of this party of Moslems to which the accused (and no doubt others) belonged: he is said to have carried both a sword and a lathi: and I regret to say to have used the former vigorously. Applicant No. 2, Hafiz Gafoor, is shown to have carried and used a Mirzapur danta which is a heavy stick. Applicant No. 3, Sheikh Janglu, is said to have carried a lathi. Applicant No. 4, Sheik Bado, is said to have been armed either with what is described as a meatcutting instrument or a small lathi and to have be on throwing stones. Appellant No. 5, Abdul Latif, is said to have been armed with a sword, or a lathi whilst a lathi only is said to have been carried by applicant No. 6, Abdul Razak.

I have at the commencement of my observations stated what sentences were imposed: 1 year on Ajo Mian; 1 year on Hafiz Gafoor; and 6 months on each of the rest. I cannot see any good reason for justifying the attack which the applicants made, although I am quite prepared to think that they felt a good deal vexed at the Hindu religious demonstration. I have, however, very little sympathy with people who use swords unnecessarily in an emeute.

I think, however, that taking all the circumstances into consideration, the sentence on Ajo Mian may be reduced to 6 months and on the others to two months'' rigorous imprisonment and I should like it actually drawn to their attention in thus, taking a lenient view of what might have been, had it not been for the police and the more sober-minded members of their own community, a most serious matter, that I most earnestly trust that in future they will endeavour to keep on good terms with their neighbours whatever differences of creed may separate their religious and social lives. They have got to live side by side and the many ties which would bind them together are really stronger than the forces which sometimes seem to tend to separate them.

Macpherson, J.

I agree to the order proposed.

On behalf of Ajo Hafiz, Ghafur, Jenghi and Bado the first four petitioners, chief reliance is placed on the first argument. Now while a Magistrate is bound u/s 257(1) to issue process on the application of an accused who has entered on his defence for compelling the attendance of a witness for the purpose of examination or cross-examination (save in certain stated circumstances which he must find and must set forth in writing), the proviso to that enactment on the other hand definitely prohibits the Magistrate from issuing such process, if the accused has cross-examined or had the opportunity of cross-examining the witness after the charge was framed, unless the Magistrate is satisfied that such attendance is necessary for the purpose of justice, that is to say, unless he is convinced of the existence of the strongest possible grounds for disregarding the prohibition. The exception to the prohibition must not be read as swallowing up the prohibition or the whole proviso as enjoining that the Magistrate shall issue process if, he is not satisfied that the attendance of the witness is unnecessary for the ends of justice or if he is not satisfied that (as in the case of the witnesses not covered by the proviso), the application is made for the purpose of vexation or delay of or for defeating the ends of justice. On the contrary the prohibition may not be disregarded unless in the opinion of the Magistrate the purposes of justice not merely warrant but demand such disregard. It is also clear that it is not incumbent upon him (though it is often expedient) to record in writing the reason for not being satisfied--the natural course would be to require a record of reasons for disregarding (not for not disregarding) a statutory prohibition.

Though there may be exceptional cases where the Court can see at once that the attendance of a witness referred to in the proviso should be compelled, it is ordinarily for the applicant to satisfy the Magistrate that it is necessary for the purposes of justice that his application for compelling the attendance of such a witness should be granted. In the present instance the first four petitioners had had an opportunity of cross-examining certain witnesses through pleaders who represented them throughout the trial but they had not availed themselves of it. They sought to bring themselves within the proviso by merely pointing out that their Counsel, who would have cross-examined, was ill. But much more than the mere statement of that fact was necessary in the circumstances of the case to show that the attendance of the witnesses who had not been cross-examined on the petitioners behalf, was necessary for the purposes of justice; for instance, that there were definite matters of importance on which the witnesses ought to be cross-examined on behalf of the petitioners. Only general considerations, however, were advanced and no real attempt was made to satisfy the Court that the application came within the exception to the statutory prohibition. Manifestly those considerations failed to satisfy the Magistrate. Now, the burden of showing in appeal or revision that the Magistrate ought to have been satisfied lies very heavily on the appellant or petitioner. The discretion is committed to the Magistrate and if valid reasons for exercising it in favour of the accused are not advanced in his Court or do not clearly appear from the record as it stood at the time, it is impossible for the superior Court to hold that he was wrong in failing to disregard the statutory prohibition in favour of the accused. Little weight is to be accorded to considerations which did not occur to the applicant at the time and arts of the nature of afterthought. It is clear therefore that even if attention is restricted to the considerations in favour of the argument, there is no ground for interfering in revision with the order of the Magistrate.

There are, however, special considerations in the present case which militate against interference in revision. Not only is it not shown that there were materials before the Magistrate on which he was satisfied or which ought to have satisfied him that process to compel the attendance of the witnesses who had not been cross-examined, was necessary for the purposes of justice, but it is obvious that he was not so satisfied and that he was even satisfied to the contrary. The parties had been warned that the trial would proceed from day to-day, and the pleaders of petitioners 1 to 4 ought to have been ready. Mr. Nairn, an experienced Counsel cross-examined at length the witnesses present on that data on behalf of Latif and Razak, petitioners Nos. 5 and 6, and on the case generally prima facie covering the whole ground. Several of the numerous pleaders appearing on behalf of the first four petitioners were also retained on behalf of Latif and Razak and two of them at least were present in Court. There were sixteen accused on trial, and when Mr. Nairn concluded not only petitioners 1 to 4 but also all the other ten accused declined to cross-examine. It was thus even possible for the Magistrate on consideration of all matters before him actually to be satisfied that it was not necessary for the ends of justice to compel the attendance of the four prosecution witnesses for further cross-examination.

It is not unusual for the defence to take advantage of a contretemps of the nature indicated in order to make capital out of it in appeal or revision, especially where, as in this instance, the risk involved is negligible. In circumstances such as have been detailed the trying Magistrate alone is in a position to gauge the situation and to appreciate whether the refusal to cross-examine and the subsequent application for process against the same witnesses has been merely "tactical," and thus it behaves superior Courts to be on their guard against suggestions as to the conduct of the trial.

Finally reference may be made to the specific finding of the learned Sessions Judge that the elimination of the depositions of the witnesses not cross-examined on behalf of petitioners 1 to 4 would not improve the position of these petitioners, since those witnesses do not advance the prosecution case against petitioners 3 and 4 and the other evidence on record is adequate to establish the charges against the petitioners Ajo and Hafiz Ghafur.

The first ground is therefore without merit.

The second plea on behalf of appellants fails since the common object set out in the charge of assaulting Hindus--not the processionists only but also any members of the community met with--has been found to be established, while as to the sentences I would join in the hope that the reduction may have a beneficial effect on the relations between the two communities at Bhagalpur.