The King vs Moule Bux and Others

Das, J.—On an examination of the record of the case, Emperor v. Mould Btix and Ors. pending before Mr. R.K. Lal, a Magistrate exercising first class powers at Jamshedpur (G.R. Case No. 324A of 1947), a Bench of this Court issued a rule against the accused persons as also the Deputy Commissioner of Singhbhum, directing them to show cause why the order of the learned Magistrate, dated 13th September 1948, should not be set aside. The order of the learned Magistrate on that date was to the following effect:

Prosecution (Assistant Public Prosecutor) bas filed a petition stating that he may be permitted to withdraw prosecution against the accused persons and that the prosecution be withdrawn against (he accused in respect of all the charges. In view of this application u/s 494, Criminal P.C., I allow the Assistant Public Prosecutor to withdraw the prosecution, and I acquit the accused persons in respect of all the charges against them in this case. The accused''s lawyer is also present,

The Bench also directed the issue of another rule against the Sub-divisional Magistrate of Dhalbhum, Jamshedpur, (Mr. Section N. Singh) asking him to show cause why he should not be dealt with for contempt of Court for having issued or caused to be issued a letter to the trying Magistrate directing that a particular order be passed in the case, and also giving the terms of the order to be passed, which act prima facie constituted an interference with the exercise of judicial discretion by the Magistrate trying the case. The letter which the Sub-divisional Magistrate wrote to the trying Magistrate was dated 4th December 1947, and was in the following terms:

"To

All Magistrates trying rioting oases arising out of the last disturbances in the Tata Factory.

The accused persons have represented to Government for withdrawal of these cases and the Government are considering their prayer. These cases should, therefore, be adjourned for two months and be taken up on the 1st February 1948. The following order should be passed in these oases immediately and the parties informed. ''The accused persons'' are reported to have made a representation to Government for withdrawal this case and the matter is in correspondence with the Government. The case is, therefore, adjourned to 1st February 1948. Accused as before. Inform parties''.

This may be returned to mo after perusal and a copy of this draft order should be kept by you.

(Sd.) S.N. Singh, S.D.O., Dhalbhum, Jamshedpur.

A copy of the rules issued was served on the Advocate-General of Bihar on behalf of the Provincial Government so that the Provincial Government might have an opportunity of being heard in the matter, if they so desired.

We have now heard the learned Advocate-General on behalf of the Provincial Government and the officer concerned in respect of both rules. Mr. S.N. Sahay appearing for the accused persons was not called upon by us to make his submissions.

The material facts of the case may be shortly stated. On 7th May 1947, at about 3 P.M. there was an occurrence in the office of the Electrical Engineer inside the Tata Iron and Steel Works at Jamshedpur. A first information of the occurrence was given by Mr. A.R. Gupta, Electrical Engineer, on 8th May 1947, at 2 P.M. This first information stated that when Mr. Gupta and certain members of the supervising staff were in their office in connection with a Safety Committee meeting, some of the workers raided the office, damaged some properties and assaulted some of the officers. A police investigation followed and a charge-sheet against 17 accused persons was submitted on 18th June 1947. The trial commenced before Mr. R.K. Lal on 5th July 1947, and continued on several dates. The examination and cross-examination of the prosecution witnesses concluded on 16th September 1947, by which date one of the accused persons was dead, and the trial proceeded against the remaining 16 accused persons. On 18th September 1947, the statements of the 16 accused persons were recorded u/s 342, Criminal P.C. On 30th September 1947, some defence witnesses were examined and cross-examined. On 6th October 1947, arguments were heard, and the case was postponed till 11th October 1947, for judgment. Judgment was not, however, ready on that date, nor on the next date fixed, which was the 18th October 1947. On 6th November 1947, an order was recorded to the effect that the accused persona had moved the Provincial Government for withdrawal of the case. The trying Magistrate then noted as follows:

Instruction on phone has been received from the Sub-Divisional Officer to adjourn the case. To 22nd November 1947. Accused as before.

It appears that on the 13th October 1947, one Mr. M. John, President of the Tata Workers, Union, wrote a letter to the Prime Minister of Bihar for withdrawing the case on the ground that the occurrence arose as a result of the introduction of the New Bonus Scheme which had many defects and had exasperated the workers. From 6th November 1947 till 13th September 1948, successive adjournments were given on the'' ground that the orders of the Provincial Government had not been received. On 15th December 1947 an adjournment was given in pursuance of and in terms of the order which bad been communicated by the Sub-Divisional Magistrate of Dhalbhum (Mr. S.N. Singh) to the trying Magistrate in his letter dated 4th December 1947, which I have already quoted at the beginning of this judgment. On 13fch September 1948, the Assistant Public Prosecutor filed a petition for permission to withdraw from the case, presumably on receipt of an order from the Provincial Government, and then the learned Magistrate passed the order to which I have already made a reference.

Two questions arise for consideration. The first is about the propriety of the order of the learned Magistrate dated 13th September 1948. It is well settled now by a number of decisions of this Court as also other High Courts in India that an order of acquittal or discharge passed u/s 494, Criminal P.C., consequent on the withdrawal of the Public Prosecutor from the prosecution of any person with the consent of the Court, is a judicial order and liable to revision by this Court, if the discretion vested in the Magistrate to give consent has been improperly or arbitrarily exercised. Ordinarily, this Court is reluctant to interfere with the discretion given, but undoubtedly has power to do so, and will do so in special circumstances where the withdrawal appears to be manifestly improper. The learned Advocate-General has filed an affidavit in this case made by the Sub-Divisional Magistrate of Dhalbhum in which, among other things, it has been stated that during the pendency of the case some irresponsible persons were causing dissatisfaction between the labour and the management of the Tata Iron Works, and were "imbuing" the workers with revolutionary spirit and inciting them to take recourse to steps which were likely to disturb the peace. On receipt of the representation from the President of the Tata Workers'' Union, the Provincial Government waited for some time in order to make sure that the workers were penitent and would co-operate with the management in the production of steel, in case the prosecution was withdrawn, and when the Provincial Government were so satisfied, they instructed the Public Prosecutor to withdraw from the case with the consent of the Court. It is clear that permission to withdraw from the case was asked for in this case with a view to restoring peace a ad good feeling between the workers and the management and avoiding further trouble and stoppage in the matter of production of steel. Section 494, Criminal P.C., has been expressed in very general terms, and no fixed rule can be laid down as to the reasons for withdrawal. In some earlier decision the view taken was that the reason must not be extraneous to the case, but later decisions make it clear that the inexpediency of a prosecution for reasons of State may be a ground for withdrawal u/s 494. Therefore, I do not think that the Magistrate acted improperly or arbitrarily in giving his consent to the withdrawal of the Public Prosecutor from the prosecution of this case. This disposes of the first question.

The second question arises out of the rule for contempt of Court against the Sub-Divisional Magistrate, Dhalbhum. The Sub-Divisional Magistrate has in his affidavit admitted having issued the letter of 4th December 1947. He has stated that he issued the letter in good faith and did not intend to interfere with the course of justice or cause any prejudice. He has further stated that he realised now that his action was not in conformity with law, and has expressed regret for it. The officer concerned was present in Court during the hearing of this case. Having heard the learned Advocate-General, we have decided to accept the apology offered by the officer in question. It must not be understood, however, that we look with lenience at such conduct on the part of an officer occupying the position of a Sub-divisional Magistrate. The Sub-divisional Magistrate occupied a position superior to that of the Magistrate who was trying the case, and should have known that sending a letter with the terms of the order to be passed in the matter of an adjournment of the case was a clear interference with the judicial discretion of the trying Magistrate. Once again the attention of all Magistrates must be drawn to the observations made by my Lord the Chief Justice in The King v. Harihar Singh and Ors. A.I.R.1949 Pat. 320 decided on 6th September 1948, in the matter of adjournment of cases. The conduct and hearing of a case must be controlled by the Magistrate trying it, and it is he alone who must exercise his judicial discretion in the matter of an adjournment of the case, unfettered by any outside authority. It must be stated once again in unequivocal terms that no authority howsoever high has any right to dictate to the Magistrate as to how he should exercise his discretion, and any one who does so, be he a superior executive officer, or not, places himself in peril of being proceeded against for contempt of Court. Mr. S.N. Singh has been clearly guilty of contempt, inasmuch he prevented the unfettered exercise of discretion by the trying Magistrate. We are accepting his apology and regret, as this is his first offence and was committed before the observations made by my Lord the Chief Justice in the case referred to above.

Before I conclude I should like to refer to another matter which has been incidentally brought to our notice. In this case this Court asked for the record with a report by means of a letter addressed to the Deputy Commissioner of Singhbhum dated 28th July 1948. The record and report were asked far in connection with the quarterly statement of pending cases submitted to this Court. The letter addressed to the Deputy Commissioner was received by the Sub-divisional Magistrate of Dhalbhum on 17th August 1948. The Sub-divisional Magistrate passed an order asking the trying Magistrate for the record with a report. No immediate action appears to have been taken on this order. On 20th August 1948, this Court sent a reminder to the Deputy Commissioner of Singhbhum. This reminder was forwarded to the Sub-divisional Magistrate of Dhalbhum on 4th September, by means of memo No. 2686J of that date. The learned Advocate-General has placed this memorandum in original before us. The memorandum does not appear to have been placed before the Sub-divisional Magistrate. On 8th September 1948, a telegram was sent for the record, and this was communicated to the Sub-divisional Magistrate. In spite of this telegram, the record was not immediately sent, but was despatched on 14th September 1948, with a report by the Sub-divisional Magistrate. It is significant that the order of withdrawal was passed only a day before, viz., 13th September 1948. From the facts stated above one is likely to come to the conclusion that the record was not sent before 13th September 1948, sO as to present this Court with fait accompli. In his report dated 14th September 1948, the learned Sub-divisional Magistrate has again apologized for the delay in submitting the record and has referred to some communal and Adibasi troubles as the reason for the delay. I must say that the reason does not appear to me to be very convincing. All that the Sub-divisional Magistrate had to do was to send the record with a report as to why the case was pending for such a long time. This should not have taken long, and 1 am satisfied that the learned Sub-divisional Magistrate was negligent in his duties. If I were satisfied that the Sub-divisional Magistrate intended to flout the order of this Court, I would have been in favour of taking severe action against him. On the materials before me, I take the more charitable view and hold that the Sub-divisional Magistrate cannot be found guilty of anything more than mere negligence. I think the matter may be allowed to rest there, except for expressing the caution made necessary by the facts of this case that an order of this Court for records must always be complied with ''as early as possible, and any intentional delay brought to the notice of this Court will be severely dealt with. It appears that the record of 1 this case was for some time with the Deputy Commissioner. As to the practice of sending records to public functionaries on executive orders, the matter has been dealt with by my Lord the Chief Justice in The King Vs. Parmanand and Others, which we heard last week.

Agarwala C.J.

I agree.

Narayan J.

I agree.