1. The matter for decision in this Rule lies within a narrow compass but it is necessary to mention the facts in some detail, The petitioner was appointed Director of Industries, Bengal in 1937 and was made the Agent of the Government of India in 1911 for procurement and supply of War materials. In October 1944 he was appointed Deputy Director General (Pro. duotion) and Controller of Supplies, Bengal Circle. On 26th October 1945 the petitioner's residence was searched, it is said, at the instance of the Special Police Establishment, Ministry of Home Affairs. On 14th August 1947 the petitioner was placed under suspension. On 22nd November 1947 an officer of the Special Police Establishment filed 7 petitions of complaint in the Court of the First Special Tribunal, Calcutta, against the petitioner and others charging them with having committed offences under S3. 120B, 161,16S, etc., Penal Code.
2. Case No. 1 was against the petitioner only, the charge being for conspiracy with one Sripati Mukherjee and others under Section 120B, read with s. 166, Penal Code. There were also specifics charge of overt acts alleged to come within Section 165, Penal Code with referenoe to gifts and the like said to have been taken for himself and other offioera and gifts of money said to have been procured by the petitioner from Sripati Mukherjee and for named subordinates of the petitioner. These sums of money are the subject-matter of four separate oases, viz., oases Nos. 4, 5, 6 and 7 of 1947, against the respective accused.
3. Case No. 2, was against the petitioner and two others under Section 120B, read with Section 161, Penal Code, the charge alleged being for obtaining and accepting money from Sripati Mukherjee at the rate of approximately 40 p. o. of the profits made from contract for jute and cotton tents. The remaining case no. 3 was against the petitioner and one other. The petitioner has been discharged from this case by the First Special Tribunal, Oases nos. 4, 5, 6 and 7 need not be referred to further except to say that in case no. 7, it is said, proceedings have been qua. shed by this Court.
4. The general allegations against the petitioner appear sufficiently foe the present purpose from the foregoing. The cases were opened for three days, viz., 6th to 8fch January 1948, and evidence was led on 9th February 1948 starting in case No. 2 with the evidence of Sripati Mukherjee. It should be said that the special tribunal has a number of cases in hand at one time and it appears to be the practice of the tribunal to fix a suitable number of dates consecutively for a particular case and then to adjourn for a period of some weeks, in the meantime taking up other cases. Sripati Mukherjee was examined in chief for five days, that is, up till 14th Fe-bruary and the case was adjourned until 5th March. Between 14th February and 6th Maroh this Court was moved for a rule which was disposed of without delaying the proceedings before the tribunal; the subject-matter of the rule and its result is not now material. Sripati Mukherjee was examined accordingly from 6th March and his evidence in Case No. 2 was concluded after 11 days and in case No. 1 after is days, other witnesses having been examined and charges having been framed in all the cases on 26th May 1948. The petitioner's learned Counsel took up the cross-examination of Sripati Mukherjee in case No. 2 on 9th July continuing until 14th July and again from 18th August to 95th August. On 25th August a medical certificate was filed on behalf of the accused R E. be y, one of the accused in case No. 2 to the effect that he was incapable of standing his trial. Cases were accordingly adjourned and on 28th August the tribunal ordered that as Case No. 2 could not be proceeded with, Case no. i was fixed for cross-examination from 8th to 11th September 1948. On 30th August the petitioner moved this Court for a rule against the said order praying that cross-examination of Sripati Mukherjee in case no. 1 be not taken up until his cross examination and reexamination in case No. 2 were finished, submitting that the order of 28th August would seriously prejudice the petitioner. The rule was made absolute on 17th September 1948. The proceedings in Oases Nos. l and 2 having been stayed oases Nos. 4 to 6 were fixed for cross-examination from 8th to 11th September. On 8th September the Public Prosecutor informed the Court that the witness Sripati Mukherjee was confined to bed and unable to attend with the result that the oases were adjourned after certain other witnesses had been cross-examined. After a further investiga-tion of the physical and mental condition of the accused B. K. be y, the tribunal ordered that further proceedings against him be postponed and that case No. 2 be proceeded with without him; case No. a was fixed for hearing from 19th November 1948, On 19th November the Public Prosecutor asked for an adjournment on the ground that Sripati Mukherjee was too ill to attend Court for cross examination. He put in a medical certificate from Dr. A, E. be y Choudhury, Professor of Medicine, B. G. Ear Medical College, Caloutta. The case was adjourned to 18th December. On 17 to December a letter from Sripati Mukherjee with two medical certificates, one from the practitioner already referred to and another from a cardiologist on the staff of B. G. Ear Medical College and Hospital was put in. The witness stated that his health being completely shattered he is unable to give any further evidence. One of the certificates was to the effect that the witness required 'a course of prolonged rest, treatment and change of climate for three months from date' and the other stated that the witness needed 'rest, be to physical and mental, for a prolonged period which may be six months or more.'
5. On 18th December 1948 learned Counsel for the petitioner submitted to the tribunal that there was no likelihood of Sripati Mukherjee being 'able to give evidence in any reasonable near future....' learned Counsel asked for a letter from Sripati Mukherjee to one E. N. Mukherjee, who appears to be the Superintendent of Special Police Establishment;, Calcutta, dated 17th November 1948 should be called for in order to get a more complete progress history of Sripati Mukherjee's illness. The tribunal heard arguments and stated that they would pass orders on the following week. Orders were, in fact, passed on 16th January 1949. The order rejeoted the petitioner's prayer and adjourned the case to 2bth February 1949. Paragraph 32 of the present petition gives the petitioner's reasons for thinking that the date is for mentioning and not for actual hearing; this may well be so, but it will be seen that it is not relevant to the question now before me. It should however be stated at this stage that the order, so far as it appears from the petition, was an order rejecting the petitioner's prayer, that is for the letter of 17th November 1948 referred to in the letter to the tribunal dated 17th December should be called for. The petition concludes by a submission that the petitioner wanted speedy trials but is not getting them and the members of the tribunal and the opposite party, that is the prosecution, should be called upon to show cause
why the evidence of Sripati Mnkherjee in case No. I and in case No. II should not forthwith be expunged and the oases proceeded with thereafter without any further delay.
6. The order moved against is the order of the tribunal dated 16th January 1949. The order dealt with the matter somewhat fully. It states inter alia that on 13th December 1948 the Public Prosecutor asked for a further adjournment up to the end of February 1949 on the ground that the witness was seriously ill. It refers to the certificates and continues
Mr. A. K. Basu, counsel for accused 1 opposing the motion for adjournment unreservedly accepts Dr. be Choudhury's certificate and does not contest the last of the witness's present incapacity.
learned Counsel contended however that any further adjournment on the ground of illness of the 'witness would be unjust to the accused and urged that the evidence of the witness should be expunged 'from the record and the prosecution be ordered to proceed with the case without that evidence. The next following sentence runs 'Stipatl Mukberjee being the most important witness in the case the prosecution is not prepared to go on without his evidence.'
This is, on its face, the observation of the learn ed members of the tribunal. It is not a matter which they could have derived from their own view of the evidence as the far record-ed ; it follows that some one on behalf of the prosecution must have made a statement substantially to that effect during the course of the discussion. It also appears from the order that the learned Counsel informed the Court that he required only i or 5 more hearings to complete his cross-examination of this witness. In argument here Mr. Basu stated that is to be read subject to the consideration that the reference is only to Case No. 2 and that the cross-examination of Sripati Mukherjee, which has not been begun, .in casa Mo. 1 would take a number of days. The learned members of the Tribunal referred to the order of this Court in Revision that the cross-examination of Sripati Mukherjee in case no, l must not be taken up before the completion of this cross-examination and reexamination in the present case. The order of the Tribunal is in substance as follows:
After a very careful consideration of all the oiroumuaes we have come to the conclusion that in the interests of justice) the application for adjournment should be granted, There is no evidence before ob to show that the witness is already past recovery or that his recovery will be so indefinitely delayed as to make further progress with the case problematical. We accordingly adjourn the case to 28th February 1949.
It may be usefully stated on this point that the Tribunal also dealt with the prayer for the production of the letter of 17th November 1943 and held that in view of the medioal certificates having been accepted by the defence no useful purpose would be served by dealing further with the letter of 17th November 1948.
7. Before proceeding to indicate the nature of the arguments here it is as well to observe that the question before the Tribunal was a question of adjournment or no adjournment and that the question of expunging the evidence of this witness was a matter which was mentioned in disouasion but it does not appear to have been treated as anything more than incidental to the matter before the Tribunal, viz., adjournment or no adjournment.
8. After taking the Court in some detail through the matters covered by the petition Mr. A, E. Basu for the petitioner submitted that the time had now come for a decision to be taken whether further adjournments were to be granted for the purpose of completing the cross-examination of Sripati Mukherjee or whether case No. l and case No. 2 should proceed as they stood without the evidence of this witness. His submission was that he was asking for an order 'calculated to terminate the trial within a reasonable period'. Later Mr. Basu said that be asked for an order in the terms of the rule to the extent that the actual date fixed, namely, 28th February might stand but that the order of this Court i. e,, that the evidence of Sripati Mukherjee in oases Nos. 1 and 2 should forthwith be expunged. Dealing with the aspect that the order on its face was an order granting adjournment from 15th Jaunary to 28 February Mr. Baso submit to that the long adjournment amounted to an error of law. This aspect may be dealt with briefly. No doubt in some circumstances a mere order of adjournment may amount to an error of law, for example, an adjournment for an unreasonably long period or an adjournment for a reasonable period but after a number of adjournments where the position is that the last adjournment though not unreasonable in itself becomes cumulatively with the preceding adjournments unreasonable. Such: however is not the case on the present fasts. From the account of the proceedings given above, it will be seen that regard being had to the nature of the case, and the character of the Tribunal the proceedings have been carried on with reasonable expedition. It follows that there is nothing legally wrong with the order, qua order of adjournment and in the circumstances of the present case it cannot be held as such to be wrong in law.
9. Besoming the consideration of the arguments, for the prosecution, Mr. Ananda urged that the proseoution was itself anxious to dispose of the case with all possible expedition.
10. With regard to the prayer for expunging the evidence of Sripati Mukherjee he submitted that this Court has no jurisdiction to expunge evidence legally and duly recorded; that the evidence must remain on the record and that the weight of the evidence was a matter for the trial Court to consider when it comes to weigh the evidence. He argued that no High Court, so far as his experience went, has ever passed an order to expunge evidence in a pending case.
11. In his reply Me. Basu oonceded that it was for the crial Court in the first instance to deal with the evidence in accordance with law, This is, in my opinion, an end of the matter. Mr. Basu submitted in his reply that he did, in fact, want the evidence as it stood to be con. sidered by the trial Court but he wanted an order that no furtive/ chance be given to the prosecution after the cross-examination of other witnesses in Oases Nos. l and 2 having been finished to produce Sripati Mukherjee should his state of health then permit.
12. After what has been said above little remains for discussion. In my opinion the matter is to be dealt with as a matter of principle, viz., the principle that if legal evidence is available it should not be shut out. It follows that I do not propose to pass an order limiting the discretion of the Tribunal, a responsible and weighty judicial body for the future. If the accused should have any complaint with regard to an order of the Tribunal which may be passed hereafter this Court is open to him, if and when the Tribunal has passed the order. With particular reference to the prayer of the present petition, viz., that the evidence should be expunged, the matter has, as I have said, been, in fact, disposed of by Mr. Basu's agreement to the principle that it is for the trial Court in the first instance to deal with the evidence in avoidance with law. From another point of view the order of the Tribunal is, as I have stated, in substance an order granting an adjournment until 28th February. I have held that it is a proper and legal order and this Court cannot and should not interfere with it, qua order of adjournment. In so far as the matter of expunging of the evidence was referred to during discussion before the Tribunal and has found its way into the present Rule I observe that this is not a matter disposed of by the order of the Court. The matter is-at large and it may be that it will be dealt with at the next session of the Tribunal. Whether it is dealt with or not is not for me to speculate. Suffice it to say, that -this Court cannot in revision deal With a hypothetical future grievance submitted by learned Counsel for the petitioner. To put it shortly this Court cannot in revision revise an order which has not yet been passed, The question whether further time is to be given for the prosecution is produce Sripati Mukherjee for further roosts examination is a question which will be for decision by the Tribunal at the proper time and in its judicial discretion.
13. The rule is accordingly discharged.