Jamuna Singh and Others vs Emperor

John Bucknill, J.—This was an application in criminal revisional jurisdiction made by ten persons who were originally all convicted on the 17th December last by a Magistrate of the First Class at Chapra of various offences and sentenced to various terms of imprisonment in connection with an assault upon a man of the name of Raghunath Singh. This Raghunath Singh was the complainant in the case. From the decision of the Magistrate an appeal was preferred to the Sessions Judge of Saran but was dismissed on the 28th January last. It is unnecessary, and under the circumstances would perhaps be undesirable, that I should dilate upon the facts which led up to this accusation being made against the present applicants. The matter has now come before this Court on a very simple point in revisional jurisdiction.

The position during the trial was that one of the two persons who were stated in the story for the prosecution to be the ring-leaders of the affair was the second applicant whose name is Nageswar Prasad. This man who is said to be a petty landholder of some little importance in his neighbourhood asked permission to call a certain witness on his behalf in order to show that he (the applicant) was, at the time when the offence was alleged to have been committed, not present, there at, but was actually in Calcutta. This individual whose testimony- it was thus sought to be obtained was Mr. R.H.M. Rustomji of 20 Ballygunje Circular Road, Calcutta, and it is admitted that he is a mercantile gentleman of some position and importance. Now it is quite true that, apparently, in the written statement which this applicant filed in the first instance, he did not therein state that he proposed to urge in his defence a plea that he was not present at the assault; but he did mention this gentleman in his list of witnesses and it seems clear from the explanation which is now given by the Deputy Magistrate that this gentleman Mr. Rustomji could not attend the Court. On the 27th November, which was, I gather, the first day upon which the defence opened its side of the case, it is clear that this applicant put in a petition asking that this Mr. Rustomji might be examined on Commission; on the ground that he was ill. Now the Deputy Magistrate states:

It is true that a petition was filed on the 27th November 1923 to examine the alibi witness, Mr. R.H.M. Rustomji of Calcutta, of one of the accused persons, namely, Nageswar Prasad on Commission, but as the case was important I thought his attendance in Court absolutely necessary.

The certificate about his illness did not suggest by which date he could undertake the journey of coming over to Chapra and the accused did not insist for another date to produce him. I had, therefore, no other alternative but to reject the application for his examination by Commission.

I think that perhaps the Deputy Magistrate took an incorrect view of his powerlessness. The letter which was couched in very courteous language written by Mr. Rustomji to the Deputy Magistrate was of such a character and was accompanied by a medical certificate of such a character that I should have thought it spoke for itself. It says that he regretted that he was unable owing to ill-health to undertake a railway journey and, therefore, could not attend the Court and the medical certificate stated that he was suffering from a weak heart and a painful internal malady. Under these circumstances and as the Deputy Magistrate thought that this gentleman was a very important witness, I think that the proper course would have been that some effort should have been made to ascertain (either by telegram or by correspondence and either undertaken on behalf of the Court or undertaken by the applicant himself) as to whether it would, within a reasonable time, be possible for this invalid gentleman to come to Chapra and if not, then, reluctantly, to come to the conclusion that it was necessary that his evidence should be taken on Commission owing to his inability to be present at the place where the case was being decided. But all that the Deputy Magistrate did at, that time, so far as I can gather, was simply to note in the order sheet--"Rejected. Filed". He gives no reason there for such rejection and he certainly does not indicate that he contemplated either giving the applicant another chance of ascertaining when and if, this gentleman could attend or of assisting further through the Court the applicant to ascertain those facts as to the possibility of attendance and as to the necessity of taking the evidence on Commission. I am bound to say that as the matter stands I should have felt that the applicant might consider himself somewhat hardly treated. There does occur, however, a circumstance which may be explicable but which does not seem to have been explained by the learned Counsel who appears for the applicant. It does not seem that any question about this witness was referred to at the trial, because the Deputy Magistrate does not refer to it himself in his decision. That may perhaps be, because, he having rejected the petition, there was nothing more for him to say, but what does seem noticeable and inclines one perhaps to consider that there may be something in what the learned Assistant Government Advocate suggests, namely, that the evidence of this gentleman would not be of much value, is that in the ground of appeal to the Sessions Judge this point does not seem to have been included and that the Sessions Judge himself does not in his judgment mention it at all. It is, however, put in the forefront of the application in revisional jurisdiction made to this Court. I am bound to say that on general principles I think that this man was entitled under the circumstances to have the evidence of this gentleman taken. Whether it would have been of any value to him it is impossible to hazard any confident conjecture but that he thought it was and that the Deputy Magistrate himself thought that Mr. Rustomji was an important witness appears to be quite clearly the case. The question as to how far the evidence of this Mr. Rustomji might have affected others of the applicants other than the applicant himself is one which perhaps needs at a later stage very careful consideration. It is quite obvious that, if the prosecution story which puts as the leader of an affray or of an assault an individual whose, presence at the scene of the alleged occurrence is conclusively disproved, it can not but throw serious grounds of suspicion upon the whole of the prosecution story; and I should not be prepared definitely to say that in the event of this witness being able clearly to show that this Nageswar Prasad, the applicant, was not present at all at the scene of what took place, but was in Calcutta at that time; that such evidence would not militate very seriously against the whole truth of the complainant''s story. Under these circumstances I think that the proper course will be to set aside the decision of the Sessions Judge of the 27th January last and to set aside the judgment of the Magistrate of Chapra of the 17th December last and to order, firstly, that the evidence of this Mr. R.H.M. Rustomji shall, if possible, be taken on behalf of the accused Nageswar Prasad Singh. I do not pretend to be able to foresee in what way this evidence can be taken. It may be that this gentleman is now in a position in which he can and will come from Calcutta in order to give his testimony; on the other hand he may be still in such a state of health that a Commission will have to be issued to take his evidence in the case at his own home. Secondly, that the Magistrate shall, after, if possible; having taken this evidence, re-consider in the light of that evidence (if it throws any light at all upon the matter) the case of all those accused who were before him. It he is unable for any reason to take or obtain the evidence of this Mr. Rustomji I think that it is necessary that his report to that effect and the reason for his failure should be submitted to his Court.

Adami, J.

I agree.