Anant Ram Marwari, Surjmal Marwari and Baki Moharaj vs Mansoob Roy

The rule in this case relates to proceedings before the Deputy Magistrate of Bhagulpore in regard to murder, committed in that town, of Ram Churn Marwari in which Ananta Ram Marwari and others are the accused. Objections were taken to the proceedings of the enquiry with special reference to their continuance, and the rule was in these terms that the Magistrate do shew cause why the proceedings of the enquiry should not be forthwith terminated by the committal of the Petitioners to the Court of Session or by their discharge, and then as an alternative, or why, if there is any real necessity for futher enquiry, the same should not be made by another competent Magistrate.

As regards the first part of the rule we find considerable embarrassment in giving any effect to it because it seems to us that we should not be justified in excluding the discretion which every judicial officer has, until the absolute termination of the proceedings of admitting additional evidence which tends to further the interests of justice nor are we prepared as a Court of Revision, to consider the entire evidence on the record with the object of passing final orders in this case. We think there is no reason why the Magistrate who has held this enquiry or if the enquiry should be conducted by another Magistrate, he should not exercise the powers which are given to him by law to pass final orders in the case. That disposes of the first part of this rule.

On the other hand, after considering the arguments addressed to us by learned counsel, on both sides and the proceedings which have already taken place, we are forced to the conclusion that the Deputy Magistrate has not acted in a proper manner in these proceedings. We think it very undesirable, at this stage of the case, to express any opinion in detail in the several matters concerned because any opinion from us will be likely to act very prejudicially to one party or the other, in regard to any further enquiry which might be held or any trial in the Court of Session. We would, however, remark generally that in many respects the matters laid before us simply amount to error of judgment on the part of the Deputy Magistrate in passing the several orders and we have no doubt that, in so dealing with many matters in the course of the proceedings before him, he was actuated with the sole motive of promoting the ends of justice. At the same time there are other matters in which we think that he has acted with some degree of impropriety, showing a certain amount of bias as against the accused. We would particularly draw attention to the manner in which the order-sheet has been drawn up. Many of the entries shew unmistakably that they were not made, as required by the rules of this Court daily, and in some instances, we have reason to think that the orders were not recorded either on the particular day or possibly even on the following day. The substance of the orders too, thus recorded as has been pointed out by Mr. Jackson who appears in support of the rule, certainly in one instance, shews that the Deputy Magistrate did not record the order with reference to the state of the proceedings then before him. He seems rather to have anticipated the objection which might have been raised and, in fact, was raised on the subsequent date, which inclines us to think that these orders were made after the objections had actually been taken.

In another instance, we observe on the record a note made, having reference to circumstances under which the Medical Officer was cross-examined. The cross-examination took place on the 9th. June, and on our drawing Mr. Jackson''s attention to the entry he denied the correctness of this note, and he also pointed out to us that this note was not to he found on the attested copy of the deposition which has been supplied to him, though it purports to have been recorded on that deposition to him. That copy on the face of it, shews that it was made on the 10th June, and from this there can be little doubt (unless the copyists and the examiners too have been most extraordinarily to blame in omitting this note, and we cannot understand why they should both of them have so acted) that this note must have been after the 10th June, that is, at least two days after the occurrence to which it relates This matter is of some importance, bearing on the conduct of the Deputy Magistrate in the case. These instances are, we think, sufficient to show that further proceedings should not be taken before this Magistrate. At this stage of the proceedings, we think it undesirable to offer any opinion regarding the course taken in the Deputy Magistrate''s Court in respect of the cross-examination of Dr. Fink or the contradiction of his evidence by the evidence of other witnesses tending to impeach his credit. Those are matters which should more fitly be determined at the trial of this case, and we do not desire at the same time to express any opinion as to the exercise of the discretion by another Magistrate who may take further proceedings in this matter in regard to the right to cross-examine Dr. Fink as a hostile witness which we understood is claimed on behalf of the prosecution. But we think it necessary to notice the course taken by the Deputy Magistrate, after he received the rule from this Court by which proceedings in his Court were suspended. Notwithstanding this order, the Magistrate placed on the record a letter received from Dr. Murray who is apparently a medical expert whom the prosecution desired to call to contradict Dr. Fink, in which Dr. Murray expressed his opinion on the medical evidence given in this case. After he had received the orders of this Court, the Magistrate should have abstained in any way from taking further proceedings in any respect, and it was clearly improper on his part to place with the record a letter from Dr. Murray which could not in any way be regarded as evidence in the case. Its effect could only be prejudicial to the accused, and it was a statement made behind their backs in which they had had no opportunity to cross examine the writer Dr. Murray. Obviously, the Magistrate should have refused to receive or even to look at this letter. For all these reasons we think that the enquiry should be held by some other Magistrate, and we accordingly direct that the case be transferred to the Court of the District Magistrate of Bhagulpore who will proceed with the case in the manner required by law. If he be not able himself to conduct the proceedings, he should transfer the case to some other competent officer under him not being the Magistrate who has held the proceedings before us.