Assistant Government Advocate vs Upendra Nath Mukerji

Dhavle, J.—In this case Babu Jamuna Prasad, a First Class Deputy Magistrate of Bhagalpur, who was trying a case under Sections 145 and 151, I.P.C., applied to this Court on 26th August last for an order u/s 39, Prisoners Act, (3 of 1900) that Babu Rajendra Prasad, whom the Magistrate described as the ex-Dictator of the Provincial Congress Committee, Patna, and who was undergoing a sentence of imprisonment in the Hazaribagh Jail, be produced in his Court to give evidence as a defence witness.

On 28th August I passed an order in chambers allowing the application of the Deputy Magistrate. On 2nd September the Assistant Government Advocate put in the present application praying that an order be passed instead for the examination of Bubu Rajendra Prasad in that case on commission in the Hazaribagh Jail. This application purports to be made u/s 561-A, Criminal P.C. and is rested on the grounds that the production of Babu Rajendra Prasad at Bhagalpur would cause very great inconvenience and very considerable expenditure of money to Government, as Babu Rajendra Prasad is an "A" class political prisoner for whose transit very special arrangements have to be made and that the Government apprehend that large crowds would assemble at the stations on the route and at Bhagalpur and there would be serious danger of a breach of the peace. The affidavit in support of this application was sworn by the personal clerk of the Assistant Government Advocate, who spoke of the allegations in the petition being true to his knowledge "derived from the papers on the record." At the time of issuing the rule on the petition of the Assistant Government Advocate, I expressed doubts about the sufficiency or even propriety of such an affidavit; and the Government Pleader, who has been appearing in the case since, has supplemented it with two affidavits, one sworn by Babu Ranjit Kumar Banerji, Deputy Superintendent of Police, Bhagalpur, and the other by Mr. Mackenzie, Superintendent of Police at Chapra. The lawyers appearing for the other side have elected to waive any technical objections to the admission of these supplementary affidavits, but they have opposed the application of the Crown on the ground that Section 561-A, Criminal P.C., has no application to the facts of the case, that the Court should not give relief to a party, in this instance the Crown, merely because (as the affidavit of the Deputy Superintendent of Police shows) the lawyer engaged for the party in the lower Court made a mistake, and that there has been no change in the circumstances warranting any alteration of the original order for the production of Babu Rajendra Prasad to give evidence before the Deputy Magistrate.

Section 561-A, Criminal P.C., has been recently considered in several reported cases. The latest of these to which reference has been made at the Bar is Raju v. Emperor AIR 1928 Lah. 462, in which it was held that the section does not affect Section 369 of the Code and that there never has been any inherent power in any High Court to alter or review its judgment in a criminal case once it has been pronounced and signed, except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on the merits. A somewhat similar view was taken in this Court by Coutts, J., in Nandkishore Lal v. Emperor [1919] Cri. L.J. 447 who held that the High Court has no power to review its judgment pronounced in revision in a criminal case. Section 561-A was added to the Code of Criminal Procedure by the amendments of 1923 and runs:

Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Mr. Das, for the opposite party has pointed out that the order I am now moved to pass boars on an order passed not under the Code of Criminal Procedure but under the Prisoners Act, and he has urged that there is no question of the abuse of any process in this case, and that the concluding words of the section "to secure the ends of justice" refer only to the fair trial of the particular case.

There is and can be no question however that the order for the production of Babu Rajendra Prasad in the Bhagalpur Court is not a judgment, and it seems to me that it is really unnecessary in the circumstances of this case very closely to scrutinize the wording of Section 561-A. The reason is that the section confers no inherent power (vide 10 Lahore 1, already referred to) and is confined in its application to the High Courts, while there have been cases in which even lower Courts have been held justified in acting in the exercise of an inherent power in certain criminal cases. As an example, reference may be made to Lalit Mohan Bhattacharjee Vs. Noni Lal Sarkar and Others, , a case in which it was held open to a Magistrate to change his mind after ordering the issue of summons u/s 204 of the Code. A stronger example perhaps is furnished by Achambit Mandal v. Mahatab Singh [1914] 42 Cal. 365, a case in which the Magistrate took up a summons case on a date in advance of the date fixed for the hearing and the complainant being naturally absent passed an order of acquittal u/s 247 of the Code. Subsequently the complainant appeared on the proper date, and the Magistrate ignored his own order u/s 247 and proceeded to try the case; the Calcutta High Court held that the Magistrate was entitled to do so. The fact is that, as was observed by Sir Barnes Peacock, C.J. in Hurro Chunder Roy Choudhry v. Shoorodhonee Debia [1868] 9 W.R. 402, we should do well, in construing the Acts of the legislature, to take for our guidance Domat''s remark that since laws are general rules, they cannot make express provision against all inconveniences, which are infinite in number, and so that their dispositions shall express all the cases that may possibly happen. Their Lordships of the Privy Council, while observing in another well-known case that Courts have inherent power to decide one question and reserve another, pointed out that it did not require any provision of the Code to authorize a Judge to do what in the matter was justice and for the advantage of the parties. In Krishnasami Panikondar v. Ramasami Chettiar AIR 1917 P.C. 179 their Lordships also held that where an ex parte order is passed excusing the delay in presenting an appeal, it must be regarded as a tacit term of such an order that though unqualified in expression it should be open to reconsideration at the instance of the party prejudicially affected. These observations, it is true, were made with reference to the Code of Civil Procedure, but it seems to me that the principle is by no means inapplicable to the Code of Criminal Procedure as well, subject of course to the qualification that inherent power cannot be invoked on a point where the Code has made express provision.

Turning now to the merits of the application, the affidavits show that Babu Rajendra Prasad is an "A" class political prisoner, whose removal to Bhagalpur will entail heavy expense; the Deputy Superintendent calls it "enormous expense of some thousands of rupees," and the details given in his affidavit and in that of Mr. Mackenzie show that such things will be necessary as a reserved compartment or saloon, the deputation of an Imperial police officer to escort the prisoner, and the engagement of a motor car for a long road journey. The mere expense is of course not decisive of the question whether a certain witness should be examined in Court or "on commission," but Section 506 of the Code authorizes the issue of commissions in cases where the attendance of a witness cannot be procured without such expense as under the circumstances of the case would be unreasonable. In Queen-Empress v. Burke [1884] 6 All. 224 the attendance of certain witnesses was dispensed with and their evidence taken on commission was used in the Sessions Court on the ground inter alia that the expense which was put at Rs. 500 would be unreasonable; their Lordships held that in the circumstances of the case the amount could not be considered unreasonable as the entire case rested on their evidence, and the accused could not apparently afford to arrange for their cross-examination away from the Court. Now, in the present case Babu Rajendra Prasad was put forward by the defence or rather by Babu Upendra Nath Mukerji, one of the three accused, as a material witness, but the question of expense in procuring the attendance of the witness did not arise at that time as the accused concerned only applied for the examination of the witness on commission in order, as he said "to avoid harassment and inconvenience." The application was opposed by the Public Prosecutor appearing in the case on the ground that it would be inconvenient to examine the witness on commission.

The learned Magistrate on that ground and on the ground that the witness was said to be a material defence witness held that it would be more desirable to examine the witness in Court than on commission. What inconvenience Babu Upendra Nath Mukerji, the only accused who applied for the examination of Babu Rajendra Prasad as a witness, meant does not appear and has not been explained, but it has been urged before me that inconvenience to a witness is not a sufficient reason for examining him on commission: Empress v. Counsell [1882] 8 Cal. 896. The affidavits speak not only of enormous expense and of possible inconvenience to Babu Rajendra Prasad himself but also of inconvenience to the Government and the public, and they give grounds for an apprehension that Babu Rajendra Prasad''s presence at Bhagalpur would be the occasion of another serious demonstration, which it would take a considerable police force to control, and that it is possible that considering the excitable nature of the Bhagalpur crowds, it might become necessary to use force to clear the Court compound. Mr. Das, who has appeared for the two accused other than Babu Upendra Nath Mukerji, does not accept the statement in para. 4 of the Deputy Superintendent''s affidavit

that on the previous occasions when Babu Rajendra Prasad visited Bihpur in Bhagalpur in connexion with the political propaganda, his presence attracted immense crowds from the adjacent villages which became unruly and on one occasion had to be dispersed by the police by the use of force.

But the statement is there on oath, though I observe that it is not based on personal information but on information given as the Deputy Superintendent says, by the Superintendent of Police at Bhagalpur. Mr. Mackenzie has also sworn from his own knowledge that on account of an apprehension of a breach of the peace as a result of huge demonstrations and assemblage of crowds in thousands and unruly mobs at most of the important stations lying on the ordinary route from Chapra to Hazaribagh, special arrangements had to be made for taking Mr. Rajendra Prasad after his conviction to the jail by a circuitous and unusual route. Allegations of this character cannot be ignored without any material placed before the Court by other side. So far as Babu Rajendra Prasad himself is concerned the learned Government Pleader does not pretend that there has been any change in the circumstances between 23rd August (when Babu Upendra Nath Mukerji applied to the Magistrate for Babu Rajendra Prasad''s examination on commission) and now. It is however clear that the circumstance now disclosed by the affidavits were not brought to the notice of the learned Deputy Magistrate, but that on the contrary the Public Prosecutor acting without instructions opposed the application to examine the witness on commission. If these circumstances had been brought to the notice of the Magistrate I doubt very much whether he would have disallowed the prayer made on behalf of Babu Upendra Nath Mukerji for the examination of the witness on commission and would have ordered instead that the witness should be examined in Court. For in replying to the rule issued on the application of the Assistant Government Advocate the learned Deputy Magistrate says that in view of the circumstances revealed in the petition of the Assistant Government Advocate and also in view of the original petition of Babu Upendra Nath Mukerji for the examination of Babu Rajendra Prasad on commission, the witness may be examined on commission. It seems to me further that if the point had been taken before the Magistrate prior to his application to this Court u/s 39, Prisoners Act, he would himself have been competent to replace his order for the examination of Babu Rajendra Prasad in Court by an order for his examination on commission and that he would have done so and done so rightly. I put to Mr. Das the not unheard of incident of a Court fixing some date in a case and afterwards fixing an earlier date with the consent of the parties.

There is no express provision in the Code authorizing the Magistrate to do so and the mere consent of parties can of course give no jurisdiction; and yet the change of date may have been made for reasons which should have been, but were not, brought to the notice of the Magistrate or which escaped his notice originally. The order to examine a witness on commission in lieu of an earlier order to examine him in Court seems to me to stand on much the same footing as an order advancing a date already fixed, so far as authority under the Code is concerned. It has been held in In Re: Llewelyn Evans, that in the expression "abuse of process" in Section 561-A, "process" is a general word meaning in effect anything done by the Court. There is no question of course in the present case of the abuse by Babu Upendra Nath Mukerji or by Mr. Das''s clients of any process of the Court, but it does seem to be that in the circumstances disclosed by the affidavits the power of this Court u/s 39, Prisoners Act, would be wrongly used if Babu Rajendra Prasad is sent to Bhagalpur for his examination in Court when Babu Upendra Nath Mukerji''s own application was that the witness should be examined on commission and the date notified to him so that he could arrange for the witness''s examination "viva voce by pleader." The other two accused persons apparently said nothing on the occasion though they were entitled to put questions to Babu Rajendra Prasad no less than Babu Upendra Nath Mukerji, The order obtained by the learned Deputy Magistrate from this Court has placed all the three accused in the advantageous position of being able to examine Babu Rajendra Prasad at comparatively small cost, for I take it that it will cost them more to send their lawyers to Hazaribagh for Babu Rajendra Prasad''s examination on commission. This circumstance has been brought to my notice by the lawyers appearing for the opposite party and it seems to me that it must be taken into account, having regard especially to the fact that the expense of bringing Babu Rajendra Prasad from Hazaribagh to Bhagalpur, which is put at "some thousands of rupees," is one of the grounds on which the Assistant Government Advocate based his application. If the opposite party decided not to object to the admission of the supplementary affidavits it is this abstention on their part that has made it possible for me at all to consider the application on the merits. An order to examine Babu Rajendra Prasad on commission will therefore not be unfair in the circumstances, provided the accused are reimbursed for the additional expenditure that will be entailed on them. But if this is done it has not been suggested before me that they will suffer in any way if the order to produce Babu Rajendra Prasad in Bhagalpur for deposing in the case is replaced by an order for his examination on commission in view of the materials now placed before the Court.

The application is therefore allowed. The opposite party will be entitled to receive Rs. 300 from the Crown on account of the extra cost imposed on them by the alteration in order of 28th August.