Mahanth Dukhan Das and Others vs Emperor

Beevor, J.—The appellants in these three appeals were tried together by a Special Magistrate in Saran District for offences committed on 19th August 1942 at Parsa police-station, Saran District. The prosecution case was that on that day about 2 P.M. a mob of about a thousand persons armed with various weapons came to the police-station and some of them broke the tiles of the roof and some doors and windows of the police-station building while others brought out furniture and records and burnt them. Members of the mob were also alleged to have broken open the cash-box and carried away its contents, Rs. 9 odd. There are 12 appellants before us, who have all been convicted u/s 143, Penal Code, though no sentence has been passed under that section. They have also all been convicted under Rule 35(4), Defence of India Rules, read, in the case of five appellants --Raktu Sah, Ramgobind, Ramsingar, Maninath and Kripanand. Gir, with Section 149, Penal Code, and they have been sentenced to terms of imprisonment ranging from six years in the case of Murlidhar Pande (the appellant in Appeal No. 498), to two years in the case of Raktu Sah, Ramsingar Sah, Maninath Thakur and Ramgobind Sah. They have also been sentenced to fines with varying terms of imprisonment in default of fine.

The nature of the occurrence has not been challenged before us; and the contentions on behalf of the appellants fall under two categories: first, arguments as to the validity of the trial, and secondly, arguments as to whether the complicity of individual appellants has been established. A third point of law was raised, though on this point there has been practically no argument. This point is that the conviction under Rule 35(4), Defence of India Rules, read with Section 149, Penal Code, is illegal.

I will deal with the third point first. There is a decision in Vasudeva Mudaliar v. Emperor AIR 1929 Mad. 880 in which it was pointed out that the word ''offence'' in Section 149, Penal Code, is confined to offences under the Code, and does not include within its meaning offences under special Act, such as the Rail, ways Act, which, was in question before the Madras High Court. This will apply in the present case to an offence under the Defence of India Rules. This point would really be sufficient to dispose of the appeal of those five appellants who have been convicted under Rule 35(4), Defence of India Rules, read with Section 149, Penal Code. But I should mention that it was suggested on behalf of the Crown that the wording of the charge specifies that these appellants were guilty of specific offences without reference to Section 149, Penal Code, though a reference to that section was actually made at the end of the charge.

It was therefore suggested that the conviction of these five appellants could be maintained after removing reference to Section 149, Penal Code. This contention however is answered by the fact that the learned Magistrate has clearly separated the case of these five appellants from the cases of other appellants on the very ground that they are not shown to have been guilty of any overt act.

I will next take the arguments regarding jurisdiction of the Special Magistrate. It has been pointed out that the District Magistrate of Saran passed a general order dated 28th August 1942 in the exercise of his powers u/s 10, Special Criminal Courts Ordinance, 1942. Therein he directed that offences under Rule 35, Defence of India Rules, should be tried by Special Judge. There is however in the present case, a specific order of the District Magistrate on, the order-sheet dated 7th September 1942 directing that this case shall be tried by Babu P.B. Sanyal, Special Magistrate. It has been contended that, having passed a general order dated 28th August 1942, and not therein having reserved to himself any power to vary that order, the District Magistrate had no further power thereafter to direct that any offence under Rule 35, Defence of India Rules, should be tried by a Special Magistrate. The wording of Section 10, Special Criminal Courts Ordinance, 1942, shows that Special Magistrate shall try such offences or classes of offences, subject to certain restrictions, as the appropriate authority (in this case the District Magistrate) "may by general or special order in writing direct." In my opinion, the issue of a general order will not debar the District Magistrate from varying that general order in any specific case by a special order.

It was suggested that as the result of the general order passed by the District Magistrate on 28th August 1942 the Special Judge of Saran had taken cognizance or seisin of the case. That general order may have authorised his taking cognizance or seisin of the case; but there is nothing to show that he actually did so. The remarks I have just made, must not be taken as indicating that I consider that the District Magistrate would have had any power to withdraw the case out of a trial actually started before the Special Judge. It has further been contended that the special order of the District Magistrate will apply only to those accused who were before the Court on the date of that order. I find, however, that on 1st September 1942, four accused were forwarded in custody and, at the same time, the Sub-Inspector of Parsa police-station prayed for issue of warrant against 30 persons mentioned in his report and the Sub-divisional Officer directed the issue of warrant of arrest accordingly. The special order of the District Magistrate dated 7th September 1942 directing that this case should be tried by Babu P.N. Sanyal, a Special Magistrate, follows immediately after that order on the same order-sheet, and, I think, it clearly gave the Special Magistrate authority to try all those persons who were produced before him in respect of that offence, whether they had actually been arrested or produced in Court before the order of the District Magistrate or not.

It has been pointed out that no report of this occurrence was prepared by the Sub-Inspector of Police until 1st September 1942. No doubt, this shows considerable delay; but conditions in that area were certainly very disturbed during she period in question, and this by itself is not a reason for discrediting the evidence against any appellant. [After considering the evidence his Lordship proceeded.]

To sum up the conclusions, I would allow the appeals of all the appellants except the appellants Gajadhar Prasad Verma alias Bacha Babu and Murlidhar Thakur. In the case of Gajadhar Prasad Verma I would reduce the sentence passed upon him to the period of imprisonment already undergone and set aside the sentence of fine and the imprisonment in default of fine.

In the case of Murlidhar Thakur, I would reduce the sentence passed upon him to four years'' rigorous imprisonment. In exercise of our revisional jurisdiction, I would further direct that the conviction and sentence passed upon Rudal Singh, who was convicted but has not appealed, be set aside and he be acquitted.

Yarma J.

I agree.