Emperor vs Debi Sah

Agarwala, J.—This matter comes before me for review on a reference by the Special Judge of Muzaffarpur u/s 8(b), Special Criminal Courts Ordinance No. 2 of 1912. The accused Debi Sah was tried with two other persons on a charge under Rule 56 (4), Defence of India Rules. The case against them was that on 15th August 1942, in contravention of an order of the District Magistrate banning processions within the district, they were members of a procession whose object was to raid the thana at Lalgunj and of preventing the payment of Chaukidari tax.

In support of this case the Sub-Inspector of Lalgunj Police Station was examined and he deposed that Debi Sah was one of the persons in a procession of about four thousand men which was taken out on 15th August for the purposes mentioned above. There was no cross-examination of this witness and no defence evidence in rebuttal of his testimony, with the result that the Special Magistrate who tried the case under the Ordinance found the three accused persons guilty and sentenced them to three years rigorous imprisonment and to pay a fine of Rs. 50 each. Against the conviction by the Special Magistrate there was an appeal u/s 13 of the Ordinance to the Special Judge by Debi Sah.

The other two accused persons did not appeal. The Special Judge dismissed the appeal of Debi Sah. He then moved the Special Judge to refer the matter to me u/s 8(b) of the Ordinance on the ground that the case involved a queation of special difficulty. Being satisfied that the case did involve such a question the Special Judge made the reference.

The question of special difficulty which induced the learned Special Judge to make the reference was that u/s 72, Government of India Act, Ordinance 2 of 1942, ceased to be in operation for six months from its promulgation, and the offence committed in the present instance was beyond six months from the date of the promulgation of the order. That question, however, is now no longer of any importance as the Ordinance has been extended indefinitely. Two other points of law, however, have been raised by Mr. Imam on behalf of the accused persons. Before dealing with those, however, it is necessary to refer to a question of fact which was also raised.

The case of the accused was that he was not present at all when the procession was taken out on 15th August but that he visited Hajipur on the 11th of that month for the purpose of registering a zarpeshgi deed and for paying the chaukidari tax which was due from his-- father. He has produced the receipt for the tax to show that it was paid on 11th August and he has produced a zarpeshgi deed executed by one Kali Bhagat in his favour which was presented for registration by Kali Bhagat on 11th August. The defence of the accused is that the Sub-Inspector who has deposed against him may have seen him in Hajipur on 11th August but that he did not see him there on the 15th. In support of this reference was made to the report which the Sub-Inspector made to the Sub-Divisional Magistrate in which he stated that the accused persons and others were members d of a procession which had been taken out for the purpose of raiding the police station at Lalgunj.

In this report the date on which the procession was taken out is stated to be 15th. August but the figure "5" has been written over some other figure. The case of the accused is that as it originally stood the date on the report was 11th August. I have examined the original report and although it is clear that the figure "5" has been written over some other figure it is not possible to say that the former date was 11th August, nor, in my opinion, is that material. There is no reason why the Sub-Inspector should have altered this date for even if the procession had been taken out on 11th August the accused would have been equally guilty if he were a member of that procession for the order of the District Magistrate banning the procession was issued on 10th August.

The first question of law that has been raised is with respect to the procedure adopted at the trial. The accused persons were produced before the Sub-Divisional Magistrate on 20th September 1942. He then remanded them to. custody till the 22nd, took cognizance of the case and fixed the 22nd as the date for the examination of the prosecution witnesses. On the 22nd he examined the Sub. Inspector, framed a charge and examined the accused persons u/s 342, Criminal P.C. No defence witnesses were present. Accepting the evidence of the Sub-Inspector the Sub-Divisional Magistrate convicted the accused. In signing his judgment be signed himself as Sub-Divisional Magistrate and Special Magistrate under Ordinance 2 of 1942. The point of procedure raised is that there was no time given to the accused after the termination of the cross-examination of the prosecution witness to produce defence witnesses. This, it is said, is irregular inasmuch as the Ordinance prescribes in Section 11 that Special Magistrates shall follow the procedure laid down in Section 6(1) for the trial of cases by Special Judges, arid that Section 6(1) directs that the procedure to be followed by Special Judges is the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates. The procedure prescribed by the Code for the trial of warrant-cases by Magistrates is contained in chap. 21, Criminal P.C. One of the Sections falling within chap. 21 is Section 256 and this prescribes that after all the prosecution witnesses have been examined, cross-examined and reexamined the accused shall be called upon to enter upon his defence and produce his evidence.

It is said that in the present case the accused was not called upon to enter upon his defence and was given no opportunity to produce his evidence. The order sheet although it does not specifically state that the accused was called upon to enter upon his defence, does record that no defence witnesses were present. This entry was made immediately after the entry stating that the prosecution witnesses had been examined and discharged and that the accused had been examined u/s 342, Criminal P.C. Even if there were an omission actually to call upon the accused to enter upon his defence that would not, in my view, vitiate the trial provided that the accused was not denied an opportunity of stating what his defence was and of examining witnesses in support of it. In his examination u/s 342, however, the defence of the accused was merely a denial of the prosecution story and no defence witnesses were tendered and no request was made to the Magistrate for an opportunity to be afforded to the accused to procure the attendance of any such witnesses.

It is argued that the Court was bound to adjourn the case for the purpose of enabling the accused to procure the attendance of witnesses. The proviso to Section 6(1) of the Ordinance, however, specifically states that the Court shall not be bound to adjourn any trial for any purpose unless such adjournment is, in its opinion, necessary in the interests of justice. The contention on behalf of the accused is that the adjournment referred to in this proviso does not apply to the adjournment which an accused is entitled to under the ordinary procedure prescribed for the trial of warrant-cases for the production of defence witnesses. It is difficult to see why the word "adjournment" should not cover this adjournment. The word is not qualified in any way in the Ordinance and, in my opinion, it covers both those adjournments which the Courts always have discretionary powers to grant and also those adjournments which the accused is entitled to receive under the Code of Criminal Procedure.

The meaning of the proviso, to my mind, is quite clear that the accused has no right to an adjournment even in those oases where, under the ordinary procedure, he is entitled as of right to an adjournment, It is next contended that the right of adjournment is taken away only in cases where the interests of justice would not be affected by refusing an adjourment. This is a matter which has been left to the discretion of the Court under the Ordinance, and, in this case, in particular, there is no reason to suppose that the interests of justice were not served by not adjourning the case for the examination of defence witnesses, for the accused appears never to have asked for an opportunity to procure the attendance of defence witnesses or to have stated he wished to examine any such witnesses. The second question of law relates to the jurisdiction of the Special Magistrate in this case. Section 10 of the Ordinance empowers a Special Magistrate to

try such offences or classes of offences, or such cases or classes of cases other than offences or cases involving offences punishable under the Penal Code with death, 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.

No general or special order has been exhibited in this case by the prosecution and, therefore, it is contended that the prosecution has failed to prove that the Special Magistrate was a Magistrate empowered to act u/s 10 of the Ordinance. The learned Special Judge in dealing with this point has stated that there is such a general order in existence in the district of Muzaffarpur. Apart from that, however, the Magistrate signed this order as a Special Magistrate under Ordinance 2 of 1942, and it may be presumed that in signing it in that capacity he was signing the order as a Magistrate who had been authorised to try this case. It may be pointed out, however, that it is desirable in cases where jurisdiction depends upon special authorisation the authority should be exhibited in the case so as to avoid the possibility of the case being tried by an unauthorised person or that superior tribunals may not have before them the materials necessary for determining whether jurisidiction has been properly assumed or not.

In the result the conviction and sentence passed on the accused are affirmed. On the question of sentence Mr. Imam on behalf of the accused stated that his client was prepared to make a declaration of regret and undertaking not to offend in future. That, however, is a suggestion which should be made to the proper authority.