Debi Singh and Others vs King Emperor

Macpherson, J.—This Rule has been issued to consider the legality of the conviction of the four petitioners u/s 448 of the Indian Penal Code and of the first petitioner also u/s 379.

Of the petitioners the first two are brothers, the third a boy of sixteen is the son of the first petitioner and the fourth is a servant of the others. Villages Pauna and Araila which lie on opposite sides of a District Board road belong to the Raja of Surajpura except to the extent of eight pies in Araila of which two pies belong to the petitioner Debi Singh. There is a dharana there at which the bullocks of baiparis are accommodated at night and a toll is levied. The right to collect this toll was leased on behalf of the Surajpura estate for seven years terminating at the last Dasahara day to Debi Singh who accommodated the baiparis and their bullocks in a part of his own house. Since the last Dasahara the Raja has rented a house of Damri Sahu which appearently was also a dharana prior to 1915 and has through his servants realised the toll direct from the baiparis. The case for the prosecution was that some 8 or 10 days after the Dasahara the accused trespassed into the compound of the rented house, began to induce the baiparis to go to the dharana of Debi Singh inspite of the remonstrance of the Raja''s servants, abused the complainant who was the chaprasi in charge and forcibly drove the bullocks to Debi Singh''s dharana and took away the turban and jhola (bag) of the complainant containing three or four annas collected as toll that day. On these allegations the accused were convicted and sentenced as above.

It is urged on behalf of the petitioners that the conviction cannot stand because the Magistrate failed to comply with the provisions of Section 257 of the Code of Criminal Procedure. On the 14th December 1922, when the accused entered on their defence, they filed a list of 20 witnesses including the Raja of Surajpura and a deputy magistrate who had held a local enquiry in the case u/s 202 of the Code. The trying Magistrate wrote on the list "Cost to be deposited and he (presumably Debi Singh) should explain for what evidence he has summoned the Raja Sahib. The list should be curtailed." On the following day the accused filed a petition containing a list of 11 witnesses and stating that they could not afford to pay the costs of the witnesses which had been assessed at Rs. 80/-. The order of the Court was "Nos. 2 to 10 may be summoned for the present but not the Deputy Magistrate and the Raja". In the order dated the 30th January on the order-sheet it is noted that the "defence close their case".

Mr. Yunus contends on the authority of Sat Narain in the matter of [1881] 3 All. 392 Emperor v. Purshottam [1902] 26 Bom. 418 and Narayan Mudaly v. Emperor [1908] 31 Mad. 131 that in the circumstances the conviction is bad since the magistrate was bound to issue process to the defence witnesses unless he considered that the application should be refused on the ground that it was made for the purpose of vexation or delay or for defeating the ends of justice and unless he recorded such ground in writing. The reply of Mr. S.P. Varma is that the facts appearing on the record show that the Magistrate''s opinion was that the application had been made for the purpose of vexation. Reference is also made to the case of Nilkantha v. Queen Empress [1893] 20 Cal. 469 in which it was held that it lies upon the party which thinks himself aggrieved to show the Court that the end of justice had been in some way frustrated in consequence of the refusal to recall witnesses. That case however is not really relevant here as the matter before the Court was one of recall of Witnesses and indeed it is in that regard that the proviso to Section 257(1) introduced in the Code of 1898 affirms the view taken in the case.

The conclusion at which I have arrived is that the irregularity in procedure was such that the conviction cannot stand. There has been a plain departure from the law. The provision that the Magistrate shall, save in exceptional circumstances, issue process on the defence witnesses is mandatory. The exception arises when the Magistrate considers that the application of the accused should be refused on a special ground which, moreover, must be recorded in writing. In the present instance, the Magistrate has recorded no such ground for his refusal. Nor can it be clearly gathered from the record of his proceedings what his view was or that any legal ground existed, If the record itself showed a legal ground or perhaps if it appeared that there was absence of prejudice, this Court might refuse to interfere in revision. But the inability or even refusal to pay the costs of the witnesses would not be adequate ground in a warrant case and no inference can be drawn either that the accused failed to state orally to the Magistrate the reason why they desired process in respect of the Raja or that the Magistrate considered that there was ground such as is set out in Section 257 for refusing process. It may be that the Raja''s name was included for the purpose of vexation, but there is nothing to show that such was the Magistrate''s opinion more particularly as he also refused to summon the enquiring Deputy Magistrate in respect of whom it is difficult to see why he should be summoned for the purpose of vexation, or, as he was then at Arrah, for the purpose of delay, and in respect of whom a demand for deposit of costs would be decidedly unusual.

It is to be observed also that in this case the trying Magistrate refused process "for the present" and afterwards failed to pass any definite order. The curtailment of their list of witnesses by the accused at the suggestion of the Court also goes some distance to show that they did not intend to be unreasonable.

The conviction is set aside and the case is remanded to the Magistrate to dispose of the application u/s 257 according to law, and, whether or not he issues process against the two witnesses named, or either of them, to record a fresh judgment in the case.