Beni vs King Emperor

Bucknill, J.—This is an application in Criminal Revisional Jurisdiction in connection with a decision of a Magistrate of the first class of Bhagalpur by which, on the 20th December last, that Magistrate convicted the applicant of an offence against the provisions of section 420 of the Indian Penal Code, that is to say, cheating, and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 150/-; in default of payment of which he was to under go rigorous imprisonment for 30 days in addition From this decision there was an appeal to the Sessions Judge of Bhagalpur, who, on the 20th January, 1923, confirmed the conviction and sentence.

Now the matter has been brought up to me on a very small, but at the same time on a not unimportant, point. I need not here go into all the circumstances which led up to the initiation of the charge against the present accused. The short facts are as follows:-

The appellant whose name is BeniChamar and who is a resident of Patna has been convicted of cheating the complainant Dachman Chamar, who now lives in Bhagalpur but who formerly lived in Patna i.e., of swindling him by obtaining from him under false pretences the sum of Rs. 150/- It was said that the accused came to the complainant and told him that he was expecting a large consignment of leather valued at some Rs. 2000/- from Calcutta which was to be delivered to him in Bhagalpur; he suggested to the complainant that if he (the complainant) would advance to him Rs, 200/-, he (the complainant) should have the pick of the consignment and that the rest should afterwards be sold for whatever it would fetch in the ordinary course of trade. He is said to have shown a paper to the complainant which indicated that there really had been a transaction with regard to this question of leather. The complainant is said to have given the accused the sum of Rs. 150/- as an advance. The accused and the friend who was with him then left and did not return, and subsequently a charge was made against the accused by the complainant.

Now, one of the principal points which was put forward on behalf of the defence was that he had not in fact been present on this occasion at the time when it was alleged that he had made these propositions to the complainant which had been accepted by the complainant; in other words, that he could show a clear alibi. The accused at an early stage of the proceedings put forward the names of several witnesses whom he proposed to call to give testimony on his behalf. Amongst these were certain persons whose names were Munshi Sheonandan Lal, Budhoo and Digamber, but on the 14th December out of the numerous witnesses whom he had called these three did not attend. It would appear that on the same date the accused asked the Magistrate to issue a warrant ordering the third of these three witnesses, Digamber, to attend on the future date to give such testimony as he could on behalf of the accused. The Magistrate accordingly complied with this request. It would appear from the explanation which has now been (second hand) given by the Magistrate that at that moment no application was made to the Court that the other two witnesses, namely Munshi Sheonandan Lal and Budhoo should also have warrants issued against them to compel their attendance. But it is agreed that a little later on the same date, the accused again applied asking that warrants against these two men (the other two absent witnesses) should also be issued. This, for some reason or other, which, I must confess is inexplicable, was not granted. The case appears to have continued four days after this order had been refused.

So far as I can see from the order sheet, it does not seem that there was anything in the District Magistrate''s note which shows that this matter was then actively taken up, and, indeed, it is also apparently fairly clear that although the matter may, as is stated at the Bar here, have been brought to the attention of the Sessions Judge, he did not pay any attention to the question, or if he did, did not think it worth mention. The question, however, has been brought now before this Court, and on this ground, a rule was obtained from the Chief Justice and Mr. Justice Mullick on the 22nd March, 1923 under which it was ordered that this application should be heard and that applicant should be admitted on bail to the satisfaction of the District Magistrate.

mistake here. I can see no reason why within all (sic).

I have no hesitation in thinking that there has been some unfortunate accused person should not be entitled to obtain the assistance of the Court in bringing before the Court all such persons as he may think are necessary in order to protect himself against the accusation and charge which has been brought against him in connection with any criminal offence. Mere technicalities as to whether he applies at, one moment or a little later do not seem to me to be very material. It does not matter in the least to the tribunal or to the administration of justice whether there is or is not a trifling delay in the operation and conduct of proceedings. The only important thing from a fundamental point of view is that the tribunal should ascertain what is the truth of the accusation which has been brought against the individual. In those circumstances I have no hesitation whatever in admitting this application. The matter must go back to the proper tribunal for hearing do novo, and the order of the conviction and sentence of the Deputy Magistrate of the 20th December last and the affirmation of the Sessions Judge of the 20th January last will both be set aside.