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Hatemali Jamadar and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1944Cal407
AppellantHatemali Jamadar and ors.
- .....the accused to attend to his duties as a mem ber of the legislative assembly.7. as regards the may-july letters, i am unable to accept the contention that they simply asked for time so that the legal position as regards section 197, criminal p.c. and section 49, ben gal agricultural debtors act, should be cleared up; the position would be cleared up by pimply lotting the case go on and getting a decision from the court. besides, according to the standing counsel the legal remembran cer took the matter up on 26th may, and gave his opinion on 11th june, which makes the government department's letters of 24th june and 7th july, asking for time to consider the legal position, look disingenuous and mis leading. as regards the letters of 7th july and 21st september, asking for short.....

Derbyshire, C.J.

1. The Rule in Criminal Miscellaneous Case No. 251 of 1943, and the connected rules in Criminal Miscellaneous Cases Nos. 285, 286, 287 atnd 288 of 1943, were issued at the instance of the accused upon the District Magistrate of Bakarganj to show cause why the ease pending against the petitioners should not be transferred from the Court of Mr. S.K. Roy, a Magistrate of the First Class at Barisal, to some other Court. It appears that the petitioner in Criminal Miscellaneous Case no. 251 of 1943, Khan Sahib Hatemali Jamadar, is the Chairman of the Matberia Debt Settlement Board within the Pirojpur Sub-Division of the Bakargang District. A report being made that there had been misappropriation in connexion with court-fees in the Debt Settlement Board at Matberia an investigation was ordered and ultimately a charge-sheet was submitted against Khan Sahib Hatemali Jamadar and the other petitioners. After the charge-sheet was submitted the Circle Inspector reported that the accused persons are influential persons and included a local member of the Legislative Assembly the present accused and recommended that the case be transferred from Pirojpur Sub-Division to the District head quarters at Barisal. The District Magistrate without hearing any of the accused persons passed an Order transferring the case from Pirojpur to the file of Mr. S.K. Roy, a Magistrate of the First Class at Barisal. Mr. S.K. Roy is a Munsif Magistrate taking criminal cases at Barisal and it was for this reason that Mr. Palmer, the District Magistrate, selected him to try the case. After the charge-sheet was received the Magistrate decided to split the cases up into three different cases, and 9th July was fixed as the first date of hearing. On that date an application for an adjournment was filed on behalf of Khan Sahib Hatemali Jamadar on the ground that this accused had fallen ill in Calcutta where he had gone to attend the Legislative Assembly. The Magistrate adjourned the case until the following day but observed that he had to be satisfied with regard to the fact of illness and warned the accused that serious notice would be taken of his absence if the plea of sudden illness put forward as a ground of adjournment were not substantiated by a proper medical certificate. On the following day apparently in consequence of a statement made to the Magistrate, the Magistrate directed that a letter be written to the Secretary, Bengal Legislative Assembly, to ascertain whether Khan Sahib Hatemali Jamadar had attended the sittings of the Assembly on 8th, 9th and 10th July.

2. On 5th August 1943, to which date the hearing of the case was adjourned Khan Sahib Hatemali Jamadar appeared before the Magistrate and produced a medical certificate. At the same time a letter from the Secretary to the Legislative Assembly was read in which it was stated that this accused attended the sittings of the Assembly on 8th and 9th July. In view of this statement the Magistrate directed Khan Sahib Hatemali Jamadar to explain how he could attend the Assembly sittings in view of the medical certificate. On 6th August, the accused filed a petition explaining the circumstances. The explanation was accepted but the Magistrate observed that

a serious view will be taken if in future the case has to be adjourned owing to the absence of the accused away at other places.

Thereafter the trial proceeded. Khan Sahib Hatemali Jamadar moved this Court on 20th September 1943, for a Rule on the ground that the District Magistrate had no justification for transferring the case to the Barisal Head. Quarters and further that Mr. 8. K. Roy had shown prejudice in refusing to accept the medical certificate of the petitioner, when application was made for an ajournment. The other rules were obtained on 8th November 1948. In reply to the Rule the District Magistrate submitted an explanation. He observed (inter alia) as follows:

As the principal accused was a prominent public man, well-known to the Executive Officers in Piroj-pur, I felt that the case should be transferred to Barisal and I selected Mr. S.K. Eoy to try the case as he is a Munsif (that is to say, a member of the Judicial Service and not the Executive) who is temporarily doing magisterial work. I felt that he would be entirely free from any suspicion of Executive influence whether on behalf of the police or on behalf of the accused.

Since the commencement of this case I have received numerous letters from the Co-operative Credit and Rural Indebtedness Department of the Government of Bengal, suggesting that the case should either be withdrawn or postponed. I have refused to comply with any of these requests. The letters and telegrams are in my possession and can be produced for the inspection of the High Court if desired. From these letters and telegrams I have formed the impression that the accused is making use of his influence as an M.L.A. to attempt to have the prosecution stifled.

3. In view of this statement a letter was written to the District Magistrate directing him to forward to this Court all the letters and telegrams which he had received from the Co-operative Credit and Rural Indebtedness Department of the Government of Bengal suggesting that the case should either be withdrawn or postponed. Accordingly, a bundle of letters and telegrams were forwarded to this Court. On receipt of these letters and telegrams we requested the standing counsel to appear on behalf of the Government and gave him and the advocate for the petitioner copies of the correspondence. Since the receipt of these letters, Mr. Palmer has been transferred from Bakarganj to another district. (After setting out the letters his Lordship proceeded.) Mr. Hill's letters clearly created the impression in Mr. Palmer's mind that an attempt was being made to hold up or stop the prosecution. The letters certainly are liable to that interpretation. The standing counsel, however, contends that that was not the Government's intention; that the Government's intention was not to interfere with the course of justice. He stated in Court that on 13th May, a written application was made by the present applicant to the Minister in charge of the Department alleging that he had been falsely implicated in a defalcation case and that no sanction had been obtained for his prosecution and asked for the intervention of the Government. It is interesting to note that on the hearing of this Rule the advocate for the accused stated that the accused had no knowledge of the letters. Section 197, Criminal P.C. provides:. when any public servant who is not removable from his office save by or with the sanction of a. Provincial Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take-cognizance of such offence except with the previous sanction of the Local Government.

4. The standing counsel contends that by rea. son of the provisions of Section 49, Bengal Agricultural Debtors Act, the applicant is a public servant and that when the applicant's application was received by the Government Department and it was found that no sanction had been obtained, that the Government put the matter before the legal remembrancer and various opinions were obtained and rulings cited, and the question was considered as to whether there was any necessity to obtain sanction; but there were conflicting rulings on. the subject and various cases were considered: and that whilst that consideration was taking place the Government desired the case to be adjourned pending consideration; that there had been difficulty in the past in working the Bengal Agricultural Debtors Act and they wished the matter to be settled and that Government consequently authorised the letters. Further, that in November Government decided that the case must proceed as it was. There was no intention whatever to interfere-with the course of justice. It should, however, be noted that in the later letters, i. e., from 7th July, Mr. Hill was applying for an adjournment of the case to allow the accused to-appear in the Legislative Assembly and perform his duties there. In the case in Emperor v, Md. Ebrahim : AIR1942Cal219 it was pointed out that if Government desired to put in a petition or request to the Court trying a case the proper course was to do so directly through the Public Prosecutor who was the proper officer to put the matter before the Court and that it was wrong to send instructions as to what should be done with regard to a case through the District Magistrate. These remarks appear to have had no effect on the conduct of the Government Department in the present case and Mr. Palmer cannot be blamed for taking the view that the Government Departments was improperly attempting to hold up or stop the prosecution. If the Government Department wished to ascertain what the legal position with regard to Section 197, Criminal P.C. was, it could have allowed the case to go forward and have it decided according to law. If the Government wished to give permission for the prosecution to go on, they could give it at once through the Public Prosecutor. If they wished to stop the prosecution they could instruct the Public Prosecutor to apply in open Court for its withdrawal under Section 494, Criminal P.C. They took none of these courses and Mr. Palmer's letter of 3rd July, discloses that the question of Section 197, Criminal P.C. was fully considered before the prosecution was started and the advice of the Public Prosecutor was taken. It is interesting to analyse the correspondence. It opens with a telegram on 16th May, from the Government Department to Mr. Palmer:

Please report facts and stay proceedings if within your powers pending further instructions on sanction of prosecution from Government.

The obvious comment on that telegram is that it requests stay of proceedings at once before the Government Department had had the opportunity to study the facts of the case. Mr. Palmer's reply by letter next day was 'as the case is now sub judice, I think it would be improper to interfere in any way;'.... but statement of facts of the case would be forwarded as they were on 27th May. A month later, 24th June,' is the next letter and is from the Department to Mr. Palmer marked confidential; it requests a long adjournment of the case in Order that the matter may be cleared up and then raises the question of the necessity for sanction, suggests that for lack of it the prosecution may fail and that to regularise it the Public Prosecutor should withdraw the case with the consent of the Court and then the prosecution be restarted after obtaining the necessary sanction. One wonders only that it took a month to give that reply. On 5th July, Mr. Palmer replied that before the prosecution was started the question of sanction under Section 197, Criminal P.C. was considered and the advice of the Public Prosecutor taken, that there were cases in the High Court justifying prosecution without sanction and that there was no possibility of the case failing on this ground. He rejected the suggestions of Mr. Hill. The reply of Mr. Hill was curious. On 7th July, he sent a telegram and a letter suggesting a short adjournment or that the personal attendance of the accused should be dispensed with at the next hearing so that accused could attend the meeting of the Legislative Assembly. In the letter he also said he was taking legal advice on the question of sanction. The latter statement is interesting because the standing counsel in Court before us referred to the file in the matter and stated that on 20th May, the matter was referred to the Legal Re-membrancer for opinion which opinion the Legal Remembrancer gave on 11th June. Surely Mr. Hill must have known that. In view of this it is difficult to see why Mr. Hill should write on 24th June:

I am directed to request that a long adjournment of the case should be arranged so that the matter may be cleared up,

and on 7th July, that he was taking legal advice on the question of sanction. Mr. Palmer's letter of 9th July in reply to Mr. Hill's of 7th July, was as downright and uncompromising as before. After that Mr. Hill dropped the matter of a long adjournment on the question of sanction under Section 197 and contented himself with asking for Mr. Palmer's cases in support of his attitude regarding section 197. Mr. Hill, however, proceeded to write the letter of 26th July, in which he stated:

It is understood that the accused applied for an adjournment on the ground of ill health and that he remained in Calcutta in anticipation of adjournment as he had gathered the impression that the adjournment would almost certainly be granted. It is believed that he was bone fide in this and that he had not any intention of evading the process of the Court, Will you kindly inform mo of the result of the application?

5. That letter is interesting because on 9th July, the accused was due to appear before the Magistrate, but did not appear, his advocate stating that he had gone to Calcutta to attend the Assembly and had been taken ill there. The trying Magistrate observed that that day, 9th July, had been fixed after consulting all the accused and their lawyers and that the accused had not produced any medical certificate. The trying Magistrate ordered the accused to produce a medical certificate. On llth July, the trying Magistrate fixed the date for the appearance of the accused as 5th August, and ordered that the accused's medical certificate should be produced on that day; the Magistrate directed that the Secretary of the Legislative Assembly be written to asking whether the accused had attended there on 8th, 9th and 10th July. The Secretary of the Legislative Assembly wrote back that the accused had attended the Legislative Assembly on 8th and 9th July. Mr. Hill's. letter of 26th July, was written to Mr. Palmer a little over a week before the trying Magistrate' was due to take up again the case against the accused and was obviously intended to help to get the accused out of the difficulties he was involved in because of his non-appe rance on 9th July. It is a letter written on behalf of the accused by a Government Department. Mr. Palmer, gave a very terse reply in para. 1 of his letter of 29th July:

I understand that the accused was granted an adjournment but that he has been asked to produce a medical certificate in support of his alleged ill health.

6. On 5th August, the hearing was adjourned to 6th August, and on 6th August, when as stated earlier the accused offered an explanation of how he was ill in Calcutta and unable to travel to Barisal to attend Court, yet well enough to attend the Assembly sittings. The Magistrate accepted the explanation, but said that a serious view would be taken if the trial had to be adjourned again owing to the ab sence of the accused in another place. Thereafter on 7th and 14th August, the case was hoard. On 20th September, on affirmation sworn on 17th September, the accused moved this Court for a Rule for transfer under Section 526, Criminal P.C. and obtained it. On 21st Sep tember 1943, Mr. Hill again wrote to Mr. Palmer suggesting a further adjournment of the case so that the accused might attend the Assembly; but by that time the proceedings had been stayed under this rule. The Rule was first heard on 9th February 1944, and then adjourned so that the standing counsel could toll us what Mr. Hill had to say, about the letters. At the adjourned hearing on 29th February, the standing counsel furnished no statement by Mr. Hill but simply stated that the letters were not the personal letters of Mr. Hill but that Government took responsibility for them. Mr. Hill indeed in the letter of 24th writes 'I am directed to request . . . .' Who gave those directions we have not been told. From 16th May to 3rd July 1943, the Government Department was asking for a long adjournment to clear up the position as regards sanction under Section 197, Criminal P.C. From 7th July to 21st September, the Government was asking for short adjournments to enable the accused to attend to his duties as a mem ber of the Legislative Assembly.

7. As regards the May-July letters, I am unable to accept the contention that they simply asked for time so that the legal position as regards Section 197, Criminal P.C. and Section 49, Ben gal Agricultural Debtors Act, should be cleared up; the position would be cleared up by pimply lotting the case go on and getting a decision from the Court. Besides, according to the standing counsel the Legal Remembran cer took the matter up on 26th May, and gave his opinion on 11th June, which makes the Government Department's letters of 24th June and 7th July, asking for time to consider the legal position, look disingenuous and mis leading. As regards the letters of 7th July and 21st September, asking for short adjournments to enable the accused to attend to his duties as a member of the Legislative assembly, I must in the first place say that the proper and only way to make such a request is for the accused or his pleader to make it to the trying Court who will give it every proper consideration. For Government Departments to suggest to the District Magistrate what they and trying Magistrate should do in regard to cases under trial (unless they are specifically authorised by the Code of Criminal Procedure as for instance under Section 528 (3) to withdraw a case from a trying Magistrate) is wrong as this Court has more than once pointed out. I have come to the conclusion that an attempt was made to hold up this prosecution so that eventually it would be dropped. Clearly the accused had moved in this matter and had friends with influence who caused the Government Department to send the above letters. Who these persons were we have not been told. The Government which has taken responsibility for these letters knows or can find out who these persons were. It clearly is their duty to find out and see that this attempted interference which is not consistent with the oaths of office which the Governor and his Ministers have taken 'to do right to all manner of persons according to the laws and usages of India without fear or favour,' does not take place. Further it is not consistent with the duties of Secretaries of Government Departments who are officers subordinate to the Governor for the purpose of exercising the executive authority of the Province, to take part in such attempts.

8. Thanks to the proper and resolute attitude of the District Magistrate, there was no interference with the course of justice here. The District Magistrate, Mr. Palmer, acted properly in transferring the case to the Munsif Magistrate at Sadar and as subsequent events have shown he was wise in doing so. The trying Magistrate, Mr. Roy, acted properly and showed both discretion and firmness in dealing with the case when the accused after agreeing to the date fixed for hearing kept away. At the conclusion of the hearing of the Rule the standing counsel stated that the Government were anxious to do nothing which might even savour of interference with the course of justice. I can only repeat what has been said above and further say that when persons apply to Government Departments for their assistance in what might appear to be an interference with the course of justice in a case, the proper reply of those departments is 'the matter is not for us to deal with, it is sub judice; it is a matter for the trying Court.' I see no reason to believe that the accused has not had and will not have a fair trial and in my opinion the Rule for transfer should be discharged. The other rules, namely, Miscellaneous cases Nos. 285 to 288 of 1943, are likewise discharged.

Lodge, J.

9. I agree.

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