Amir Prasad Singh and Another vs Emperor

Agarwala, J.—I have had the advant-age of reading the judgment about to be delivered by my learned brother and I agree with his views. As the principal question of law raised in this appeal is of some importance I propose to state my reasons. For the purposes of procedure the Criminal Procedure Code defines the word "offence" as meaning

any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made u/s 20, Cattle Trespass Act, 1871.

Some acts and omissions are made punish, able by the Penal Code and others by various other legislative enactments. Section 28, Criminal P.C., specifies the Courts by which "offences under the Penal Code" are to be tried, namely, (a) by the High Court, or (b) by the Court of Sessions, or (c) by any other Court by which such offence is shown in col. 8 of Schedule 2 to be triable. As regards an offence under any enactment other than the Penal Code, this is triable, when any Court is specified in such enactment, by such Court. When no Court is specified it may be tried by the High Court or, subject to the provisions of the Code, by any Court constituted under the Code by which such offence is shown to be triable in col. 8 of Schedule 2 (Section 29). The constitution of the Courts mentioned in Section 28, their jurisdiction and powers and the procedure to be followed by them are compendiously defined and described in the Code. The presiding officer of a Court of Session is the Sessions Judge and all original criminal cases triable in a Court of Sessions are triable either by jury or by a Judge assisted by assessors (Section 268). The Code does not contemplate that a case triable in the Court of Session shall be triable by the Sessions Judge alone, or authorise him to try such a case alone. In the case of a trial by a Judge with assessors there is an appeal on the facts but in the case of a trial by jury the verdict is appealable only on a matter of law (Section 418). The legislative authority may amend or rescind the Code in whole or in part and, in doing so, or by separate enactment, create other Courts, bar the jurisdiction of the existing Courts to try all or any of the offences referred to in Sections 28 and 29, or direct that those Courts and other Courts shall have concurrent jurisdiction to try all or any of those offences, and alter the procedure to be followed in the existing Courts, prescribe the procedure to be follow, ed in other Courts, and abolish or restrict the right of appeal and revision conferred against decisions of the existing Courts.

Section 72 of Schedule 9, Constitution Act of 1935 empowers the Governor. General to legislate by Ordinance in the event of an emergency. On 2nd January 1942, the Governor. General made and promulgated the Special Criminal Courts Ordinance (2 of 1942) reciting that an emergency had arisen which made it necessary to provide for the setting up of Special Criminal Courts. As originally promulgated Section 1(3) declared that this Ordinance should come into operation only if the Provincial Government, being satisfied of the existence of an emergency arising from a hostile attack on India or on a country neighbouring on India, or from the imminence of such an attack, by notification in the official Gazette, declared it to be in force in the Province. This was subsequently amended by Ordinance 42 of 1942 to include an emergency arising from internal disturbances. The original Ordinance constituted three classes of Courts, namely, Special Judges, Special Magistrates and Summary Courts (Section 8), and prescribed the qualifications (Sections 4, 9 and 15), jurisdiction (Sections 5, 10 and 16), procedure (Sections 6, 11 and 17) of each of them and the sentences (Sections 7, 12 and 18) which each was empowered to pass. In certain cases triable by a Summary Court an appeal was provided for to the Special Magistrate or other Magistrate of the first class appointed by the District Magistrate (Section 19) and in certain cases triable by the Special Magistrate provision was made for an appeal to the Special Judge (Section 13). No appeal was provided for from a decision of the Special Judge, but provision was made for the proceedings to be reviewed by a person nominated in this behalf by the Provincial Government from the Judges of the High Court, whose decision was declared to be final (Section 8). Interference with the decisions of the Special Courts, otherwise than as mentioned above, was excluded by Section 26. This effectively debarred the High Court from making an order u/s 491 of the Code in the nature of a writ of habeas corpus.

The validity of convictions obtained under Ordinance 2 was challenged in the High Court at Calcutta in Benoari Lal Sarma and Others Vs. Emperor, . One of the learned Judges of that Court, Sen J., held that the entire Ordinance was ultra vires the Governor-General as, in his view, the Ordinance showed, ex facie, that in the opinion of the Governor-General an emergency necessitating the Ordinance had not arisen at the time it was promulgated. All three of the learned Judges held that Sections 5, 10 and 16 of the Ordinance were ultra vires the Governor-General and that consequently the Special Courts were not legally vested with jurisdiction to try offences as Sections 28 and 29 of the Code had not been repealed and, therefore, offences were triable only by the Courts constituted under the Code. On appeal to the Federal Court by the Government of Bengal two of the three learned Judges of that Court upheld the view taken by the majority of the Judges who heard the appeal in the Calcutta High Court, but did not express an opinion on the decision of Sen, J. that the entire Ordinance was ultra vires. Rowland J., however, dissented from the view taken by Sen, J.: AIR 1943 36 (Federal Court) Immediately after the decision of this case by the Federal Court the Governor-General made and promulgated the Special Criminal Courts (Repeal) Ordinance 19 of 1943. By it Ordinance 2 of 1942 was repealed. Trials pending before a Court constituted under that Ordinance were declared to be void and provision was made for their transfer to the ordinary Courts (Section 4). Suits, prosecutions or other legal proceedings against any servant of the Crown for or on account of or in respect of any sentence or act ordered or done, whether in exercise of any jurisdiction or power conferred or purporting to have been conferred on him by the repealed Ordinance, were barred (Section 5). Section 3 is as follows:

Confirmation and continuance, subject to appeal, of sentences--(1) Any sentence passed by a Special Judge, a Special Magistrate or a Summary Court in exercise of jurisdiction conferred or purporting to have been conferred by or under the said Ordinance shall have effect, and subject to the succeeding provisions of this section, shall continue to have effect, as if the trial at which it was passed had boon held in accordance with the Code of Criminal Procedure, 1898 (5 of 1898), by a Sessions Judge, an Assistant Sessions Judge or a Magistrate of the first class respectively, exercising competent jurisdiction under the said Code.

(2) Notwithstanding anything contained in any other law, any such sentence as is referred to in Sub-section 1, shall, whether or not the proceedings in which the sentence was passed were submitted for review u/s 8 and whether or not the sentence was the subject of an appeal u/s 13, or Section 19, of the said Ordinance, be subject to such rights of appeal as would have accrued, and to such powers of revision as would have been exercisable under the said Code if the sentence had at a trial so held been passed on the date of the commencement of this Ordinance.

(3) Where any such sentence as aforesaid has been altered in the course of review or on appeal under the said Ordinance, the sentence as so altered shall for the purposes of this Section be deemed to have been passed by the Court which passed the original sentence.

Thereafter one Sushil Kumar Bose, who had been convicted and sentenced by a Special Court constituted under the repealed Ordinance, made an application to the High Court at Calcutta u/s 491 of the Code, praying to be released on the ground that the Federal Court had declared trials under Ordinance 2 of 1942 to be invalid. He challenged the validity of Ordinance 19 of 1943. Sen J. held See Sushil Kumar Bose Vs. Emperor, that the Ordinance of 1943 was ultra vires the Governor. General as it was an attempt to validate the Ordinance of 1942 which he had no power to promulgate because at the time it was promulgated no emergency had in fact arisen. The other two learned Judges who constituted the Bench which heard this application held that the meaning of Section 3 was that sentences passed by the Special Courts constituted under the ordinance of 1942 should continue to have effect as if they had been passed by a valid Court until they should be reviewed or dealt with in appeal under the Code of Criminal Procedure but that, in the words of the Chief Justice:

It was the duty of the proper Court which has appellate or revisional jurisdiction in the areas in which these sentences were passed to have their convictions brought before it and quashed and, further, to direct that the persons concerned should be dealt with according to law in the ordinary Courts according to the ordinary process of law.

As I understand this case, what was decided was that as trials and convictions under the Ordinance of 1942 had been held by the Federal Court to be invalid and Section 3 of the Ordinance of 1943 refers only to "sentences" passed under the former Ordinance, the con-victions are invalid, that it is the duty of the appropriate appellate or revisional Courts, therefore, to have these convictions brought before it and formally quashed, without any inquiry into their merits and to order a retrial; but that until this has been done the officers in charge of persons convicted under the Ordinance of 1942 are authorised to continue to detain them.

This view did not commend itself to a Division Bench of this Court before which the question arose in the vacation: Criminal Revns. Nos. 34 and others of 1943 Jailal Sahu v. Emperor AIR 1943 Pat. 346, decided by Brough and Sinha JJ. It was there held that the effect of Section 3 of the Ordinance of 1943 is to validate not only the sentences but also the convictions on which they are based and the trials leading to the convictions, subject, however, to the convictions and sentences being modified or reversed on appeal or revision under Sub-section (2). It was also indicated that in the view of the learned Judges the mere fact that particular Sections of the Code of Criminal Procedure had not been complied with by the Special Criminal Courts would not be a sufficient reason for interfering with a conviction unless the non-compliance had deprived the accused of a fair trial. They disagreed with the view of Sen J. that the Ordinance of 1943 was ultra vires the Governor-General.

In the present appeal counsel for the appellants came very near to asking us to accept the view taken by Sen J. in AIR 1943 36 (Federal Court) , if he did not actually do so. The decision of Sen J. on this point is based on the view that Ordinance 2 of 1942, was ultra vires the Governor-General because no emergency bad arisen justifying the exercise of the Governor-General''s powers to legislate by Ordinance u/s 72, Schedule 9 of the Constitution. The majority of the Judges in the Federal Court in AIR 1943 36 (Federal Court) , while observing that the point was a substantial one, did not express an opinion with regard to it. They confined their decision to the validity of Sections s, 10 and 16 of the Ordinance. As I understand their judgment, they held that, although it was within the powers 6f the Governor-General to constitute Special Criminal Courts by Ordinance and to clothe them with jurisdiction to try offences--thus excluding the application of Sections 28 and 29 of the Code in regard to such offences--it was not within his competence to delegate to executive officers the duty of deciding which offences should be tried by the Special Courts and which by the ordinary criminal Courts. In order to appreciate the view taken by the Federal Court, it is necessary to refer to only one of the Sections of Ordinance 2 of 1942 relating to the jurisdiction of the Special Courts as they are all in pari materia. Section 5 provides:

Jurisdiction of Special Judges.--A Special Judge shall try such offences or classes of offences, or such cases or classes of cases as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct.

Thus, the decision as to what offences or cases should be tried by the Special Courts was not made by the Governor-General but was left to the Provincial Government or a servant of the Crown empowered by the Provincial Government in this behalf, without any direction or indication for the guidance of the Provincial Government or the authorised servant of the Crown as to the manner in which the discretion conferred on them was to be exercised, without imposing any limit on their discretion and without providing any check on the manner in which the discretion was exercised. In these circumstances, it was held that the Governor-General had not merely delegated to another authority the power to exclude the application of Sections 28 and 29 of the Code, but had abandoned to others his legislative powers in this respect.

It is clear, I think, that the Governor-General himself could have specified which offences or classes of offences should be tried by the Special Courts and thus excluded them from the operation of Sections 28 and 29 of the Code. What it was held that he could not do was to bring about the exclusion of these Sections by leaving it to someone else to decide from what cases their application should be excluded, i.e. the method by which the exclusion of Sections 28 and 29 was brought about was wrong although the operation of those Sections could have been legally excluded had the right method been adopted. Now although, I take it, a legislative authority cannot validate what it could not have antecedently authorised, I can find no support for the view that it cannot validate by subsequent legislation what it could have legally authorised beforehand. The Governor-General could have previously � directed that each of the cases in fact tried by the Special Courts should be so tried. The persons tried by these Courts are in no worse position than they would have been if such a direction had been given. I can there, fore see no objection to the Governor-General doing subsequently what he could have properly done previously. It is here that I respectfully differ from Sen J. when he says that, after the decision of the Federal Court in AIR 1943 36 (Federal Court) :

We must hold that the Governor-General as the ordinance-maker had no power to make a law which could subject the petitioners to the trials in which they have been sentenced as such trials could not have been authorised by an antecedent legislation.

I find nothing in the judgment of the learned Judge, or of his colleagues, or of the Judges of the Federal Court, and no support in the many authorities cited by him, for the proposition that the Governor-General could not have authorized, by antecedent legislation, the trial by the Special Courts of the various offences and cases which were in fact tried by them. It was contended by the present appellants that even if the Governor-General by subsequent legislation could have validated the trials held under the Ordinance of 1942, he has not done so because Section 8 of the Ordinance refers only to the sentences passed at those trials. In effect, counsel for the appellants bases his case on the judgment of the Chief Justice of the Calcutta High Court in Sushil Kumar Bose''s case Sushil Kumar Bose Vs. Emperor, , and contends that an appellate or revisional Court acting under Sub-section (2) of Section 3 of the Ordinance of 1943, is bound to set aside the sentence and direct the release of the accused, or order a retrial, in every case tried by the Special Courts, except, possibly, where it is shown that in spite of the provisions in the Ordinance of 1942 relating to the procedure of the Special Courts, the procedure prescribed by the Code for the trial of offences under the Code has been strictly followed. To accept that contention is to ignore what appears to me to be the plain language of Sub-section (1) of Section 3:

Any sentence passed by a Special Judge...shall have effect and, subject to the succeeding provisions of this section, shall continue to have effect, as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure by a Sessions Judge...exercising competent jurisdiction under the said Code.

The words "as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure," appear to me to mean unequivocally that it is to be deemed that the provisions of the Code were com. plied with even though in fact they were not. That assumption is the justification for effect being continued to be given to the sentences. The appellate or revisional Court acting under Sub-section (2) is to ascertain whether the record of the case establishes the guilt of the accused, and if so, whether the sentence passed is appropriate to the offence committed.

Brough, J.

This is an appeal by two persons, Amir Prasad Singh, and Santbilas Singh, who were each sentenced by the Special Judge of Muzaffarpur to seven years'' rigorous imprisonment under Sections 435, 149, Penal Code, and one year''s rigorous imprisonment under Sections 448, 149, Penal Code, these sentences to run concurrently, and also one year''s rigorous imprisonment u/s 56(4) of the Defence of India Rules, this sentence to be consecutive to the others. He also found them guilty u/s 147, Penal Code, but passed no separate sentence. The case arose out of a raid on the police station known as Raghopur which is situated in village Fatehpur in the Bajipur Subdivision which took place on 16th August 1942. At about 2-30 in the afternoon a mob of about 100 persons armed with weapons and carrying flags approached the police station and broke it open and threw out the papers, the furniture and the other articles in it and heaped them in the compound, poured oil over them and set fire to them.

This appeal is preferred under the provisions of Ordinance 19 of 1948 and on behalf of the appellants Mr. Sahay made two general submissions as to the effect of the Ordinance. In the first place, he submitted that, as a matter of construction the only effect of Section 3 of the Ordinance, was that as the trial in this case had not been held in accordance with the provisions of the Code of Criminal Procedure, this Court must either direct the appellants to be set at liberty or direct them to be retried according to law. Secondly, ha submitted that if the Ordinance as a matter of construction had any more far-reaching effect it was ultra vires.

The first point is covered by my judgment in Cri. Revns. Nos. 34 and others of 1943 Jailal Sahu v. Emperor AIR 1943 Pat. 346, heard by the Vacation Bench with which my brother, Sinha J., concurred. What I there said was:

It is then said that although the sentence is legal as the trial at which it was passed was not held in accordance with the Code of Criminal Procedure, as soon as it is brought before the appropriate Court in appeal or in revision it must be quashed. The point is a short one depending solely on the meaning of a dozen words in this Ordinance; the material words are ''be subject to such rights of appeal...and to such power of revision...as if the sentence had been passed at a trial held in accordance with the Code of Criminal Procedure.'' To my mind to hold that it is open to the appellant or petitioner to say on appeal or in revision that the trial was not in fact held in accordance with the provisions of the Code of Criminal Procedure and that therefore the sentence must be quashed is to give no effect to the last Clause of the words I have just quoted. For all purposes it must be assumed that the trial at which the sentence was notionally passed was held in accordance with the provisions of the Code. I certainly do not say the Court may not exercise its inherent jurisdiction to set aside a sentence if the prisoner is not shown to have had a fair trial, but technical objections that this or that Section of the Code have not been complied with cannot be entertained. Assuming the Ordinance to be in other respects valid; I do not conceive it to be the duty of this Court to give general directions for a retrial of the petitioners. Retrial would be a question for the Courts sitting in appeal or revision after consideration of the merits of each case, as I do not think a retrial should be ordered merely because the Special Courts did not conform to the Code of Criminal Procedure, so that the sentences are not based on a legal conviction.

It may, however, be said that these observations were not strictly necessary for the determination of the cases then before the Court and moreover since that judgment was delivered a full copy of the judgment of the Calcutta High Court in Sushil Kumar Bose''s case Jailal Sahu v. Emperor AIR 1943 Pat. 346 has been received. The reasoning of the learned Chief Justice and Khundkar J. attracts me no more on a perusal of the full report than it did from the incomplete reports in the press. The words of Section 3 are that the sentence is to "continue to have effect, as if the trial at which it was passed had been held in accordance with the Code of Criminal Procedure." The Calcutta High Court appear to me to construe the Section aa if it is read "the sentence is to continue to have effect as if the trial at which it was passed had been one to which the provisions of the Code of Criminal Procedure were applicable." I do not resile from my conclusion that the sentences are to be treated as if they had been passed at a notional trial in which the rules of the Code of Criminal Procedure had been complied with. I do not think I am doing any injustice to Mr. Sahay''s argument on this point by saying that it may be shortly stated as a submission that my judgment is wrong and the judgment of the Chief Justice of Calcutta is right. With great respect to the learned Chief Justice, I adhere to my previous view and I do not think I can usefully add anything to what I said in Cri. Revns. Nos. 34 and others of 1943 Jailal Sahu v. Emperor AIR 1943 Pat. 346 which I have already quoted.

The second point is also covered by the previous decision of this Court. What I said there was:

Lastly it is said that this Ordinance is invalid by virtue of the decision of the Federal Court in AIR 1943 36 (Federal Court) .... As I understand the judgment of the Federal Court, it was the delegation of the power to bring the Ordinance into effective operation in particular cases which was objectionable. The practical effect of Ordinance 19 is that the legislative authority ratifies the invalid acts of the officers of the Crown. Ratification is a familiar legal conception and of course it is not possible to ratify an act which is ultra vires of the ratifying body.... But the Federal Court did not decide that it was ultra vires to set up Special Courts and give them jurisdiction. It was the method of giving them jurisdiction which was ultra vires. I see no reason therefore why if it can avoid the error of method the legislature cannot ratify the invalid acts. The legislative authority has in this case applied its own mind to the cases covered by the new Ordinance which are specific ascertainable cases. Therefore in my opinion the ratification is effective and the new Ordinance is not made invalid by the decision of the Federal Court on the old one.

The argument of Mr. Sahay on this point was that again my judgment was wrong and the judgment of Sen J. in the Calcutta case See Sushil Kumar Bose Vs. Emperor, was right. On this point this Court is now bound by the decision of the Vacation Bench, but out of deference to Sen J., to whose judgment the newspaper reports did not do full justice, I would like to add a word. He stated that ratification of an ultra vires act by the party guilty of it is impossible and he makes the following observation:

After the decision of the Federal Court regarding Ordinance 2 we must hold that the Governor-General as the ordinance-maker had no power to make a law which could subject the petitioners to the trials in which they have been sentenced as such trials could not have been authorised by an antecedent legislation. They cannot be validated by a subsequent ordinance. It follows that the sentences also cannot be valid.

In my opinion the first proposition is too widely stated. If the reason for the proposition is examined, it will be seen that the party guilty of an ultra vires act cannot ratify it because an act of ratification would be ultra vires for the same reasons as the original act; but it does not follow to my mind, that if the particular reasons which made the original act ultra vires did not apply to a ratification that ratification of an ultra vires act by the party guilty of it is impossible and no case was cited which decided the contrary. With great respect to Sen J. as I stated in Cri. Revns. Nos. 34 and others of 1948 Jailal Sahu v. Emperor AIR 1943 Pat. 346, do not think the Federal Court did decide that the Governor-General had no power to make a law which could subject the petitioners to the trials in which they had been sentenced. As I understand that decision, he could have done so if he had set about it the right way and not left it to an officer of the Crown empowered in that behalf to determine what cases were to be tried by the Courts he had set up. I, therefore, continue in the opinion that as Ordinance 19 involves no delegation to any subordinate officer it is not ultra vires the Governor-General as a law-maker.

Mr. Sahay further submitted in this particular case as the charge u/s 435, Penal Code, was one triable by a jury that the right to a trial by a jury could not be taken away except by express words or alternatively that the deprivation of the appellants of the advantages of the jury amounted to such a miscarriage of justice that the Court must at any rate direct a new trial. In my opinion these contentions are untenable. If the words of Section 3 of Ordinance 19 are clear, and in my opinion they are, they cannot be whittled away because the effect would be to deprive the persons concerned of a right to a trial by jury. The words must be given their natural meaning and if that meaning does, as I think it does, deprive these appellants and others of a trial by jury that fact must be accepted. In this country trials of serious offences are held under the provisions of the Criminal Procedure Code in various ways--either with the jury or with assessors or before Magistrates exercising special powers u/s 80, Criminal P.C., sitting alone and the offences triable by a jury vary from province to province and district to district. I cannot see that a trial before a Judge alone in a case which in the particular district would under the normal procedure be triable with the jury amounts to such a miscarriage of justice that this Court must necessarily order a re-trial.

It is necessary, therefore, to go into the merits of this case. I cannot accept the conclusion of Sen J. that we cannot examine the facts. The sentence is to have effect as if it had been properly passed but the proceedings before the Court in this case are proceedings of a trial before a Judge alone and it seems to me that the Court is entitled to examine the totality of those proceedings and to pronounce such judgment as to the Sentences imposed by the Special Judge as after the examination of those proceedings lit thinks just. It is therefore the duty of the Court to consider not only points of law but the sufficiency of the evidence to justify the sentences imposed.

On the merits of the case the position of the two accused, Sant Bilas Singh and Amir Prasad Singh, stands on a different footing. When examined u/s 342, Criminal P.C., Sant Bilas Singh following the usual practice which I personally consider generally unfortunate contented himself with denying that he had taken part in the raid and saying that he had been falsely implicated without adducing any positive defence. A prisoner does not have to prove his defence but a probable alternative theory even if not proved provided it is not actually shown to be false goes a long way to throw doubt on the prosecution case. Sant Bilas Singh had a positive defence which was disclosed in the cross-examination. The raid on the police station was the work of strangers coming from villages round about and it terminated when the villagers of Fatehpur, in which the police station is actually situated, came in a body and drove away the raiders. Sant Bilas Singh is himself a resident of Fatehpur and his house is only a few paces from the police station. There is evidence that he had not been on good terms with his co-villagers because he seems to have made something like a corner in the land in the village and the police witnesses are the local people and more or less involved in that quarrel. There is, however, a suggestion that Sant Bilas Singh was taking steps to bring the quarrel to an end. The principal witness, literate constable Earn Prasad Singh, P.W. 1, who was in charge of the police station at the time said that five of the mob surrounded, him on the verandah and that Sant Bilas Singh was one of these men and his evidence is substantially supported by constable Makhulal Singh, constable Kuna Singh and the special constable Mahendra Singh.

In the cross-examination, however, of these witnesses and of another villager Jhanjho Singh it was elicited that Sant Bilas Singh was wearing his clothes in a manner which suggested that he was not going far from his house and that he was not doing anything in particular, but was standing apart from the mob, and from that the learned pleader who appeared for him was presumably endeavouring to show that he had come out t from his house on hearing the bulla and was either a mere spectator or a member of the rescue party which ultimately arrived from Fatehpur. The learned Special Judge who was trying the case disregarded the evidence given in cross-examination because he thought that the witnesses had been won over by the defence. I do not think that course was permissible in this case. The object of cross-examination is to test the truth of the evidence given in chief. I think! a Court would require cogent grounds to enable it simply to reject all admissions favourable to the accused made in cross examination. In this case, the line of defence adopted by Sant Bilas Singh is perfectly reasonable, and it is at least a possible hypothesis that the police had made a mistake in thinking that Sant Bilas Singh was a member of the mob and that when tested by cross-examination they admitted that he might have been merely a by-stander. In these circumstances, in my judgment, it is impossible to say that the prosecution have proved beyond reasonable doubt that Sant Bilas Singh was guilty.

With regard to Amir Prasad Singh, the position is quite different. Literate constable Earn Prasad Singh not only named him a3 one who was in the mob but also stated that it was on his order that oil was poured on the heap of the police properties. His presence in the mob is also proved by constables Makhulal Singh and Kuna Singh and special constable Mahendra Singh and no admission which supported Amir Singh''s case was extracted from them in cross-examination. The defence put forward by Amir Singh, although he made no mention of it in his examination u/s 842, Criminal P.C., was an alibi. His case was that he had been under treatment at the Bahadurpur Hospital for some time and that he actually attended the hospital, on the day in question. If that were established, the impossibility of his being present at the time would be proved. In this connexion Amir Singh complains of the course of the trial. He states that he was desirous of calling one Dr. Bhujanga Bhusan Mitra who was the doctor who had treated him and that summons had been issued for his attendance by the Special Judge but not served. On the day before the hearing was commenced he applied to have the summons served by a telegram on this witness but this application was refused and the Court was therefore invited to hold that for this reason he did not have a fair trial.

In my view the absence of this witness did not prejudice the accused. One knows very well the type of evidence given by medical men in these circumstances. He might have been able to say that Amir Singh was one of his patients and was under treatment sometime in the month of August but a busy dispensary doctor could not possibly have any independent recollection of the particular day on which a particular patient was treated. For that purpose he would require to refresh his memory by the examination of his records. The hospital records have been produced in the case and therefore the absence of the evidence of the doctor himself is immaterial. Unfortunately however for Amir Singh the learned Special Judge came to the conclusion that the hospital records had been tampered with. We have ourselves examined the hospital record book and it is quite clear that the conclusion of the Special Judge is justified. The book is made in the usual way by binding up quires of paper between card-boards with brown paper at each end. The papers of the book consist of printed forms specially prepared for hospital records.

On an examination of the book it is apparent that the first two quires which contained all the entries relating to Amir Singh are composed of a batch of forms printed at a different time to the remainder of the book. This appears from the fact that each form bears at the bottom the printer''s name giving the number of the forms in the batch and the date of printing. The first two quires are composed of a batch printed on 30th September 1940 and the remainder of the book was printed on 25th July 1941.

It also appears that the brown paper at the beginning of the book had been tampered with and had either been torn out or more probably stuck down to the card-board cover. For this reason it is clear that the genuineness of the entries cannot be accepted. Amir Singh comes from a village six miles away from the police station and if he was present in the police station compound at the time of the occurrence, as I hold it has been clearly proved that he was, there is no possibility in the circumstances that he was there for an innocent purpose. Mr. Sahay submitted that he could not be presumed to share the common intention of the mob to commit arson but there is no force in that contention. The intention of the mob is primarily to be gathered from what they did. They burnt the police properties and before burning they piled them into a heap, an act which must have involved the co-operation of many members of the mob and the purpose of which must have been obvious to everybody. The mob itself was not a large one, it was only of 100 men. There is evidence which I see no reason to doubt that the mob themselves brought oil with them which must have been known to most of the mob and cannot have been for any other purpose than to burn the police property. There is in fact the evidence of Earn Prasad Singh that Amir Singh was the person who actually ordered the burning; but even without this evidence it is clear to me that he is proved to have committed an offence u/s 485, Penal Code, read with Section 149. Mr. Sahay further complained that the investigating Sub-Inspector was not called. He could not have given any direct material evidence, but the accused were thus deprived of the opportunity to cross examine to show enmity or to discredit the prosecution witnesses by reference to their statements before him. That was not a matter arising out of the form of trial and I cannot think it is a reason for ordering a retrial.

With regard to the sentences, it has to be remembered that no actual violence was done to the police possibly of course because they made no active resistance. Neither apparently was any attempt made to burn the actual building. In these circumstances, I consider a sentence of seven years u/s 485 read with Section 149, Penal Code, somewhat excessive and I would reduce that sentence to five years. The learned Special Judge also sentenced this accused to one year''s rigorous imprisonment under Rule 56(4), Defence of India Rules, and directed that this sentence should be consecutive. No doubt this accused did commit breach of this rule but his action in so doing was a part of the same act which included the raid on the police station and the arson of the police properties. In my view, therefore, it was improper to impose a separate sentence to [be served consecutively for this offence.

In conclusion, therefore, I would set aside all the sentences upon Sant Bilas Singh and direct him to be set at liberty forthwith. With regard to Amir Singh, I would direct that the sentence of seven years'' rigorous imprisonment under Sections--435 and 149, Penal Code, be reduced to five years'' rigorous imprisonment. I would maintain the two sentences of one year''s rigorous imprisonment u/s 448 read with Section 149, Penal Code, and Rule 56(4), Defence of India Rules, respectively, but would direct that both these sentences should run concurrently with the sentence of five years'' rigorous imprisonment u/s 485 read with Section 149, Penal Code. A certificate u/s 205, Government of India Act, 1935, is granted to enable Amir Singh to appeal to the Federal Court.