Rabindra Nath Singh and Others vs Emperor

Foster, J.—The principal applicant Rabindra Nath Singh is a son of a zamindar of Bagmundi in the District of Manbhum who appears to be locally styled as Raja. The other petitioners are servants of the first petitioner. They are on their trial under charges of offences under Sections 148 and 325 of the Indian Penal Code, in respect of an alleged riot on the 23rd February, 1924. The trial has reached the stage at which the accused are to be called upon to open their defence. The burden of the petition is that these applicants have reason to apprehend that they will not be given a fair trial in the Manbhum District and, therefore, they pray for a transfer of the case to Ranchi. The petition mostly deals with the position of the first applicant and his father in their relations with the Deputy Commissioner and the Police. The petition as it was originally put before the Court contained a number of quite unjustifiable grounds, some of which have been, however, faintly put forward even by learned Counsel to-day. The suggestion that the Deputy Commissioner''s refusal to grant a gun license was evidence of bias has been maintained. It appears that early in 1922 the license held by the zamindar of Bhagmundi was forfeited. Licenses are usually refused and re-granted by the calendar year. But on the 9th of May 1924 the petitioner''s father, apparently remembering the case in Ram Kishan Das v. Emperor [1912] 35 All. 5 put in an application for a license to the Deputy Commissioner which was, of course, rejected. That ground appears to me to be quite unsubstantial.

Another matter put forward is the refusal of copies of depositions alleged to have been made to the Police u/s 162. Until I looked at the actual record I had not been made aware of the fact that the Magistrate did actually call for the diary after receiving a written statement from the Police that there was no statement recorded u/s 162, Cr. P.C. From this it appears that the Police Officer committed himself to this statement in writing and- that the Magistrate himself called for the diary and must, therefore, have tested the truth of the statements In these circumstances, if the diary was one of the kind described in Section 172 neither the accused nor his agent were entitled to call for them or to see them unless and until they were used by the Police or by the Court for the purposes described in the section.

Another point taken was one which I would have expected the learned Counsel to have dropped when he actually came to argue in revision. It is actually suggested that the appointment of the Public Prosecutor by the Deputy Commissioner in this prosecution was a sign of bias or enmity. The matter does not deserve discussion.

I come now to the more weighty part of the petitioner''s case. He has shown, and there is nothing suggesting any other story, that since the end of 1921 he has been constantly in trouble both with the Police and with the present Deputy Commissioner Mr. Deb. The date of the alleged occurrence was, as I have stated the 23rd February, 1924. On the 18th March the first petitioner appeared in Court as the accused. The very next day the Magistrate issued a warning notice upon him threatening prosecution "under Section 110, Cr P.C. for continuing habitual extortion." Now, the District Magistrate Mr. Deb had, on the 7th January, that is, 2� months before this, issued a warning notice in the same terms. So one would expect that there was an emergency demanding the reiteration of the notice. Now, looking at the Police report on which this order of the 19th March is written we see that the Sub-Inspector states that he made enquiries from several villagers of Ajodhya and that they did not corroborate the petition as to extortion but stated that they had paid the amount willingly, some even paying Rs. 32 to the zamindar of Bagmundi. He reported also that, on account of the service of notice, the Raja has reformed himself to some extent, and that ho has changed his plan of extorting Rs. 21 from each house and now accepts even Rs. 5. Some of the raiyats of Ajodhya have not yet paid and they are not oppressed, "I was watching the situation. Through fear of the petition the Raja has not touched the rest of the villagers for lagan. He has also taken legal advice and this has made him timid. The case under Sections 148, 149 and 326 brought by the villagers of Gobindapur has entirely stopped realisation of lagan by the Raja and he is waiting to see the result of the case. I shall submit my report on this after collecting more evidence." Besides this he mentions some confidential enquiries and also expressed his opinion that the villagers have been swindled and subjected to extortion and he expressed his apprehension that the end of the extortion has not yet been seen. But looking at the substantial part of the Sub-Inspector''s report we see nothing to justify this sudden reiteration of the notice issued only 2� months previously. Now, that reiteration came on the day following the date on which the first petitioner appeared in Court. It may, of course, be quite fortuitous, and I have no reason to make any suggestion to the contrary. At the same time I must point out that the notice appears to have been unnecessary and that its issue on that particular date was perhaps such as to rouse suspicion and apprehension in the mind of the first petitioner who, no doubt, has in his mind the fact that for some years he has been in difficulties with the District Magistrate and the police. The Deputy Commissioner has written an explanation which in some places indicates strength of feeling. No doubt he had in the circumstances, to express himself emphatically and I am not inclined to weigh too nicely every strong expression in his note on the case. But there are two points that still remain in my mind as giving rise to a feeling that the first petitioner may reasonably be apprehensive in regard to the trial in the Manbhum District. In his petition para. 6 the applicant had stated that in the prosecution initiated in October 1921 Mr. Hiralal Banerjee, Sub-Divisional Magistrate of Purulia acquitted the petitioner and the other accused in both the cases holding that the case was false and either the Police knew of the concocted nature of the cases or indirectly connived at the concoction. Now, I have before me the certified copies of those two judgments and I see that these words as to concoction are the very words to be found in one of the judgments, and the whole paragraph is a fair description of the result of the cases. In the paragraph the date of the judgment was stated, so it was quite easy for the Deputy Commissioner to test the truth of this description of the judgment. But he does not appear to have done this. He fixes on the fact that the petitioner had not with his petition for transfer in this Court filed the certified copies of Mr. Hiralal Banerjee''s judgments, and he does go so far as to make this comment on para 6. "A copy of judgment has purposely been withheld. The matter is three years old. So far as I remember, some of the cases ended in conviction, some in acquittal." The unfairness of the suggestion of the word "purposely" is obvious and it is also clear that the Deputy Commissioner answered in this form without verifying the petitioner''s statement by reference to the original document. So far from the copy of judgment having been purposely withheld, it appears to me that they were withheld by an act of negligence.

Another point that is unsatisfactory in the explanation of the Deputy Commissioner is his remark to be found in his answer to para. 17. He commences with saying that the paragraph is false. It is not clear what he means. I have tested the matter myself, and I find that Harnu Munda was identifying an accused and first pointed out Ramapada Dhone and then he pointed out Raghu whereupon a petition was filed to the Deputy Magistrate to put that upon record but the Magistrate did not do so. My own finding is that para. 17 is word for word substantiated by what I have seen on the record. The facts found are stated in the petition of the 31st March to be found in the B File. Now, the point is this, that the Magistrate in his record of evidence slurred over the uncertainty and the hesitation of the witness, matters which are of the utmost importance for the defence, and recorded that Harnu Munda identified Kama Prasad Singh Babu "after some discussion." He does not mention the important fact that the witness first pointed out Rampada Dhone. The omission of this important fact from the original record is to my mind gravely reprehensible; such conduct would give rise to a very reasonable apprehension in the mind of an accused that his trial will not be conducted fairly. When the petition was put in on the part of the accused for a correction of the record it was clearly the duty of the Magistrate to take this second opportunity of performing his duty, but up to this day the record has not been altered; and the Deputy Commissioner appears to be inclined to shield the Deputy Magistrate, judging by the tone of his reply to para. 17 of the application. For these reasons I shall allow the transfer.

There is one other matter that has been discussed in regard to the commitment of some accused in a case [Nobabdi v. Sripati] recently before the Deputy Magistrate, Mr. Surendra Nath Chakraberty. The suggestion is that the commitment was made under the direct influence of the Deputy Commissioner and that the Deputy Magistrate performed the act under external pressure. As this matter concerns the personal and official honour of Mr. Deb and Mr. Surendra Nath Chakraberty, and as there are several papers which have not been put before Mr. Deb, (and in fact the original statement of the affair in para. 19 of the application was wrongly typed), I feel that I should not be justified in expressing any opinion which would be ex parte or premature. But, for the other reasons which I have stated, I consider that the applicants have some reason for apprehending that influence outside the Court may bear upon the course of their Trial, and also have a grievance against the Trying Magistrate for his method of recording the evidence of Harnu Munda. The case will be transferred to the Court of the Deputy Commissioner of Ranchi to be dealt with by himself or by any Subordinate First Class Magistrate.