Shivadhin Singh vs The King Emperor

Jwala Prasad, J.—This is an application for transfer of a Sessions Trial pending in the Court of the Sessions Judge of Monghyr.

The petitioner, Shivadhin Singh, along with others was placed on the trial before the Sessions Judge of Monghyr for having committed riot in the course of which one Rajdhari Lal, Tahsildar of the Goenka Estate, was killed. There was, therefore, a charge also u/s 304, Indian Penal Code.

The trial commenced on 27th August. The Civil Surgeon, as Superintendent of the Monghyr Jail, reported that one of the accused, Bacha Tiar, was ill and was unable to attend the Court. The remaining accused applied for an adjournment of the case so that there might not be a separate trial and consequent double expense and harassment to them. This petition was rejected and the trial proceeded. Six assessors were summoned for the day: (1) Baij Nath Mahto (2) Jamna Mahto, (3) Krishna Dayal Bhagat, (4) Mahadeo Choudhry, (5) Professor P.G. Dutt and (6) Ram Prasad Singh. Nos. 1 and 6 did not appear. Professor P.G. Dutt did not understand Hindi. Out of the remaining three assessors, the learned Sessions Judge selected Jamna Mahto and Krishna Dayal Bhaghat. The accused objected to the selection of Jamuna Mahto as an assessor on the ground that he was on intimate terms with Kedar Nath Goenka, proprietor of the Goenka Estate and master of the man who was killed, and that another assessor out of those present be selected. The learned Sessions Judge asked the assessor about this. He denied being intimate with Kedar Nath, but admitted that he was a tenant of the Estate. The learned Sessions Judge overruled the objection.

The petitioner then applied for postponement of the case to enable him to move the High Court for a transfer. This petition also was rejected with the observation.

Shivadhin Singh has plenty of time to move the High Court before I reach the stage (if I ever reach it) of calling upon him for his defence.

The trial proceeded on. In the course of the trial the public prosecutor tendered a prosecution witness, Bansi Lal, for cross-examination. The witness, was cross-examined on behalf of the accused. Instead of confining himself to questions arising out of the cross-examination, the Public Prosecutor was permitted by the learned Sessions Judge to examine the witness de novo as a principal witness on behalf of the prosecution with leave to further cross-examination by the accused.

On the 4th of September the medical witness, Charu Chandra Sur, failed to attend though summoned by the Sessions Court. His evidence was admitted u/s 509 of the Code of Criminal Procedure in spite of the objection by the accused that no opportunity was given to them to cross-examine the witness. The Court directed that the witness be summoned for the defence on the 13th September but the accused refused to hare him as their own witness.

The prosecution evidence closed on the 4th of September and the accused were called upon to enter on their defence.

The-petitioner filed another petition impugning the impartiality of the second assessor Krishna Dayal Bhagat upon the ground that he was also a tenant of the Goenka estate. It was further stated that both the assessors were putting up in the Dharamsala of Kedar Nath Goenka and were having communication with the opposite party.

The petitioner was granted time by the learned Sessions Judge to move this Court far a transfer of the case. The application was prepared on the 3rd September and fried on the 6th. The allegations made in the petition of the 4th September before the learned Sessions Judge were subsequently set forth in a supplementary petition filed on the 11th September. On the aforesaid allegations the petitioner asked the Court to transfer the case from the file of the learned Sessions Judge.

The learned Sessions Judge has submitted a report upon the allegations made in the first petition for the transfer. No report could be had from him on the supplementary petition, as that was filed on the 11th September after the report of the Sessions Judge was transmitted. The learned Assistant Government Advocate was given a copy of the petition of the 11th September.

The allegations set forth in the first petition are almost admitted, except that the learned Sessions Judge could not verify the allegation as to the Assessor Krishna Dayal Bhagat being a tenant of the Goenka Estate, inasmuch as that witness was not present in Court having been summoned for the 13th of September, the date fixed in the case.

12.

The principal allegations set forth in the second petition of the 11th September are borne out by the order-sheet and therefore, do not require any further investigation.

The grounds urged for transfer on behalf of the petitioner may be summarised as follows;-

(1) That the assessors are not impartial and are interested in the result of the case in favour of the prosecution, they being tenants of the Estate whose Tahsildar was killed. The constitution of the Court was, therefore, illegal and irregular.

(2) That the learned Sessions Judge committed grave irregularity in allowing the prosecution witness, Bansi Lal, to be examined-in-chief by the Public Prosecutor after he was cross-examined on behalf of the accused on being tendered by the Public Prosecutor. This has prejudiced the accused in the defence.

(3) That the learned Sessions Judge has illegally admitted the evidence of the medical witness, Charu Chandra Sur, u/s 509 of the Code of Criminal Procedure without giving an opportunity to the accused to cross-examine him.

The consideration of the aforesaid grounds becomes immaterial in view of the fact stated by the learned Sessions Judge in his letter of the 9th September 1920 that the defence have given a list of 50 witnesses and that it would not be possible for the learned Sessions Judge to finish the trial as he is about to go on leave on October 1st and the attempt of the accused to secure de novo trial will doubtless succeed. This apprehension was also felt by the learned Sessions Judge on the 27th August when he commenced the trial, for he noted in the order sheet of that date when Shivadhin applied for time to move this Court for a transfer, that Shivadhin had ample time to move the High Court before he would ever reach the stage of calling upon him for his defence This is also obvious from the third objection of the accused referred to above which must prevail, for the Doctor will have to be cross-examined by the accused. No doubt, section 509 of the Code permits the deposition of a medical witness taken in the Commitment Court to be given in evidence at the Session trial but that is subject to the condition that the accused should have been given full opportunity to cross-examine the witness and the Court may, if it thinks fit, summon and examine such a witness as to the subject matter of his deposition. In the present case, the accused reserved the cross-examination of the witness in the Commitment Court which apparently was allowed and the witness was summoned by the Sessions Court to give evidence on behalf of the prosecution. Although, therefore, the accused had an opportunity of cross-examining the witness, they reserved it with the leave of the Magistrate for the Sessions Court. The Session Court also apparently confirmed this, inasmuch as it summoned the witness, which would not have taken place if his evidence in the Commitment Court was to be accepted without any opportunity of cross-examination being given to the accused. Though, therefore, the evidence already recorded might have been rightly admitted u/s 509, the accused had a right to cross-examine the witness and the Court was apparently in error in refusing to summon the witness when he did not attend on the 4th September and insisted upon his being called as a defence witness.

As to the second objection, namely that Bansi Lal should not have been allowed to be examined-in-chief by the Public Prosecutor, a reference may be made to section 138 of the Evidence Act, which lays down the order in which the witness should be cross examined and examined. After the cross examination of the witness on behalf of the accused the re- examination would ordinarily be directed to the explanation of the matter referred to in the cross-examination. No doubt, a new matter may, by the permission of the Court, be introduced with leave to the other side to cross-examine the witness upon that matter, But this cannot possibly entitled the prosecution to examine-in-chief on the substantive case of the prosecution after the defence has disclosed its case in the cross-examination of the witness. The procedure adopted by the learned Sessions Judge was, therefore, irregular and prejudicial to the accused.

As to the first ground referred to above, namely that the assessors were not properly selected, in spite of their having boon challenged by the accused then and there, I think there is much substance in it. Great weight is attached to the opinion of the assessors and the accused is entitled to an impartial and unprejudiced opinion In the case of Queen v. Ram Dutt Chowdhry [1874] 23 W.R. Cr. 35. Jackson, J; in agreement with he opinion of Woodroffe, J., held that the assessors should be selected judicially and with great caution. The opinion of the assessors in that case was discarded Upon that ground. The learned Judge himself is conscious of the principle when he says that he is always ready to listen to any reasonable objection to the selection of an assessor. The assessors in the particular case may not be intimate personally with the present proprietor, Kedar Nath Goenka, it is admitted that the manager of the Estate, who is a relation of the proprietor, is naturally taking keen interest, as stated by the Judge, on behalf of the prosecution inasmuch as the Tahsildar of that Estate was killed in the riot. The assessors are the admitted tenants. This in itself is a sufficient ground for the accused to mistrust the impartiality of the assessors and the relationship of landlord and tenant, master and servant creates an incapacity in a person to sit as a Judge or an assessor in a case. No doubt section 284 empowers the Judge to choose such assessors as he thinks fit from the persons summoned to act as such and there is no express provision for objecting to the selection of an assessor as is in the case of jurors u/s 278 of the Code of Criminal Procedure. But there is no reason why an objection of presumed or actual partiality should not be allowed, particularly when it is urged at the time of the selection of the assessors. I am fully alive to the distinction made in the Code between the selection of the assessors and the jurors which is based upon the principle that the opinion of the jurors is final and binding upon the Judge, whereas that of the assessors is not. Yet, as observed above, the opinion of the assessors is of great value both to the Judge who tries the case and to the superior Court. It is, therefore, necessary as an elementary principle that they should be above suspicion. The reason stated by the learned Sessions Judge why the third assessor-even if selected, would have been incapable of acting as such would apply with equal, if not greater, force to the other assessors selected by him.

The learned Sessions Judge reports that he has now discovered that the third assessor, Mahadeo Choudhury, was a caste-man of the accused and hence it would have been a valid objection to his being appointed as an assessor. This connection is disputed by the defence. Accepting it to be correct, if it was a valid objection on behalf of the prosecution to Mahadeo Choudhury acting as an assessor the fact that the other assessors were tenants of the Goenka Estate was still more objectionable from the accused''s point of view.

There is however no prejudice in the mind of the learned Sessions Judge himself, who appears to have been compelled by the circumstances to select the assessors, who were present on the date; nor is there any prejudice in him shown from some of the irregularities noticed above in the conduct of the trial. They were mere errors of judgment. It further appears that the learned Sessions Judge permitted the accused to cross examine Bansi Lal after the examination by the Public Prosecutor and that he directed the medical witness to be summoned for the defence. I do not, therefore, think that a sufficient case has been made for taking the case out; of the hands of the learned Sessions Judge and to transfer it to some other district. But I do think that the accused are entitled to be tried de novo after the selection of independent assessors, and, if the learned Sessions Judge will not be able to complete the trial, as it is apprehended on account of his going on leave on October 1st, the case will be tried de novo by his successor.