1. On 2nd March 1944, at the instance of the petitioner, the complainant, this Bench issued a Rule upon the District Magistrate of Burdwan to show cause why this case should not be transferred from the file of the Sub-divisional Officer at Burd wan or such other Order made as the Court might think fit. The matter arose in this way. On 20th September 1943, the petitioner lodged a complaint in the Court of the Sub-divisional Officer at Burdwan alleging that the opposite parties, the accused and others had committed offences against him under Sections 147, 325 and 395, Penal Code. The substance of the com plaint was that on 18th September 1943, the accused armed with spears, lathis and other weapons trespassed into the complainant's house and looted 50 or 60 maunds of paddy from his granary; that the complainant resisted the accused whereupon he was hit on the head and wounded, and that when he raised his hand to protect his head he was struck by one of them with a lathi with the result that his left hand was fractured. A charge sheet was submitted against the accused on 17th November 1943 and the accused were put upon their trial at Burdwan in. the Court of Mr. S. Chatterji, a Munsif-Magis trate, on 29th November 1943. From then until 1st February 1944, the evidence for the prosecution was heard and finished. The accused made statements under Section 342, Criminal P.C. of the formal kind stating that they were innocent and it only remained for the defence to give evidence if they thought fit, for the advocates to address the Court and for the Court to deliver judgment. On 11th February 1944, the Court Sub-Inspector, Burdwan, put in the following written appli cation:
In the Court of Mr. S. Chatterji, Munsif-Magis-trate, First Class, Burdwan, Sir,
In connexion with the case noted in the margin I beg to submit as per Government instructions it has been decided by the District Magistrate in consultation with the Superintendent of Police that clemency to be shown in this case and as such it has been decided to withdraw the case.
Orders from Superintendent of Police have been received with instruction to withdraw the case from prosecution.
I pray that I may kindly be permitted to withdraw myself from prosecution in the case and the case may be disposed of accordingly under Section 494, Criminal P.C.
2. The complainant opposed this application in a counter-affidavit stating that the accused had entered an inner apartment of the petitioner's house, beaten him, inflicted wounds, and broken his hand for which there was no justification. The Magistrate thereupon on the same day made the following order:
Bead the petition filed by the complainant I have not been given the grounds what prompted the D.M. or the S.P. to withdraw from the prosecution of a case against accused who appear to be all well-off. Accordingly, the prayer is rejected. Now cage shall proceed. However, if the C.S.I. can satisfy the grounds of such withdrawal I am prepared to reconsider.
3. Thereupon the Court Sub-Inspector communicated with the Superintendent of Police, Burdwan, who in turn, communicated with the District Magistrate, who on 12th February 1944 (the next day) made the following Order withdrawing the case from the trying Magistrate, Mr. S. Chatterji:
Seen the Order of the trying Magistrate dated 11-2-1944 and the endorsement of the S.P. dated, 12-2-1944 on the petition of the C.S.I. It is urgent that Government Order regarding clemency should be carried out.
The case is therefore withdrawn to my file and transferred to S.D.O. Sadar for favour of disposal.
4. On 19th February 1944, the Sub-divisional Officer at Burdwan to whose file the case had been transferred, considered the matter of withdrawal and heard the complainant's objections. The complainant intimated his intention to move this Court in the matter whereupon the Sub-divisional Officer stayed further proceedings. As stated earlier, this Court on 2nd March 1944, granted the present Rule and called upon the District Magistrate to show cause why the case should not be transferred away from the Sub-divisional Officer's file. In his explanation the District Magistrate of Burdwan referred to a confidential memorandum no. 28 (28) P.S. dated Calcutta, 10th January 1944, issued by the Government of Bengal, Home Department (Political) on the subject of overcrowding in jails review of qases of undertrial prisoners accused of offences relatable to famine conditions and also to a later confidential letter from the same department No. 137 P.S. dated Calcutta, 7th February 1944. The confidential memorandum dated 10th January 1944, reads as follows:
All District Officers,
The Commissioner of Police, Calcutta.
Subject.--Overcrowding in jails-review of casesof undertrial prisoners accused of offences relatable to famine condition.
The unprecendented increase in cognizable crime caused directly by the prevalence of acute famine conditions has resulted in serious overcrowding of undertrial prisoners in the jails in this Province.
2.The situation is now improving and as an act of clemency towards persons who have committed offences as a means of self-preservation in conditions of acute famine and also as a measure of affording immediate relief from the pressure on jail accommodation and the time and labour of the officers concerned, Government have decided that the cases of all persons who have been sent up by the police for offences connected with the famine such as theft of food, clothing and other necessaries committed during the last six months (even if the offence may technically have amounted to burglary, robbery etc.) should be summarily reviewed by District Magistrates, Sub divisional Magistrates or Senior Deputy Magistrates in consultation with Superintendents of Police, and all persons who are definitely not known to be of bad character should be discharged forthwith.
3.In implementing this decision the following principles must be observed:-
(a) In deciding whether any particular person deserves the benefit of clemency the advice tendered by the Superintendent of Police should ordinarily be accepted.
(b) In case of a difference of opinion between the reviewing Magistrate and the Superintendent of Police, the District Officer should personally decide.
(c) The orders which may be passed must be legal orders made in accordance with the Code of Criminal Procedure having regard to the stage which the case under consideration has reached, and if the Magistrate cannot legally pass an Order of discharge or acquittal under any appropriate section of the Code the only course to adopt will be to request the Public Prosecutor to apply for the withdrawal of the prosecution with the consent of the Court.
(d) No formal executive orderor instruction can properly be issued to a Magistrate who had already taken cognisance of a case as to the manner in which he should deal with it, but the policy of Government can be explained and the Magistrate requested to pass such legal orders as the circumstances of the case may permit.
5.Subject to these principles the detailed modus operandi required to give effect to the Government decision may be worked out by the District Officer in consultation with the Superintendent of Police. The arrangements for the production of materials necessary for reviewing cases will presumably be made by the Superintendent of Police with the assistance of Court Inspectors and Sub-Inspectors.
6. Government desire that necessary action to give effect to the decision should be taken immediately.
5. The confidential letter dated 7th February 1944 reads as follows:
Clemency may be extended even in the case of undertrial-prisoners whose offences fall technically within the definition of dacoity if the case is otherwise covered by the instructions conveyed by Home (Political) Department Memorandum No. 28 P.S. dated 10th January 1944.
6. The District Magistrate in his explanation to this Court stated that he had taken the action he did in Order to give effect to the Government policy of clemency as set out in the two circulars; that the offence was one relatable to famine conditions and that the accused had been in urgent need of paddy to save themselves from starvation. He further stated that the accused had previously demanded paddy by way of a loan from the complainant but he refused it and that the accused were, not professionally bad characters. He also stated that he had discussed the case with the Superintendent of Police and came to the conclusion that clemency ought to be extended to the accused and issued instructions that the case should be withdrawn by the Superintendent of Police. He stated that he considered it urgent that the Government Order should be carried out and therefore he had withdrawn the case to his file and transferred it to the Sub-divisional Officer, Sadar, for disposal. The Deputy Legal Remembrancer was present on behalf of the Government and this Court asked him to produce the two circulars referred to by the District Magistrate and they were thereupon produced. The Deputy Legal Remembrancer on behalf of the Government relied upon Section 528 (2), Criminal P.C. which provides aa follows:
Any Chief Presidency Magistrate, District Magistrate or Sub-divisional Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.
7. The Deputy Legal Remembrancer also relied upon Section 494 of the Code which reads:
Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other caaes before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and Upon such withdrawal (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.
8. The complainant, on the other hand, con tended that the effect of the withdrawal of the ease from Mr. S. Chatterjee and the send ing of it to the Sub-Divisional Officer, Sadar, was, under the circumstances, an improper interference with the course of justice and that the ease should be restored to the file of the trying Magistrate and dealt with according to law. It seems very doubtful whether tho trying Magistrate knew of the circular when he made his Order of 11th February 1944. As regards the circular itself, no objection can be taken to the general purpose of it. From paras. 1 and 2 it would appear that the purpose of Government was to secure the discharge of persons who, during the recent famine conditions that existed in some parts of the Province, had committed offences such as theft of food, clothing and other necessaries as a means of self-preservation. From para. 3, it would appear that at first the decision as to who should get the benefit of this clemency rests with either the Superinten. dent of Police or the District Magistrate but that the conditions of the Code of Criminal Procedure must be complied with. When the District Magistrate and the Superintendent of Police have decided whose case should be dropped, application should be made through the Public Prosecutor (in this case the Court Sub-Inspector) to the trying Magistrate for the withdrawal of the prosecution with the consent of the Court.
9. Paragraph 3 (d) makes it clear that the ultimate decision as to the withdrawal of the case rests, as indeed it must, under the Code of Criminal Procedure, with the trying Magistrate to whom the circumstances and the Government's policy must be explained. In the present case it does not appear from the petition of the Court Sub-Inspector submitted to the trying Magistrate on 11th February 1944 that the policy of the Government was explained to him and that is borne out by the Order which the trying Magistrate had made, namely,
I have not been given the grounds what prompted the District Magistrate or the Superintendent of Police to withdraw from the prosecution of a case against the accused who appear to be all well off. Accordingly, the prayer is rejeoted. Now the case shall proceed. However, if the Court Sub-Inspector can satisfy the grounds of such withdrawal I am prepared to reconsider.
10. Section 494, Criminal P.C. says that the withdrawal must be with the consent of the Court. There are numerous decisions on this point but I need only refer to one of this Court, namely, Devendra Kumar v. Yar Bakht : AIR1939Cal220 it is laid down that the trying Magistrate in deciding whether a case should be withdrawn must exercise a judicial discretion. If the trying Magistrate does not exercise a judicial discretion his action may be reviewed in the superior Courts including this Court and if necessary, his decision rectified. That is the course of justice according to law. If in any case the Government ultimately think that clemency should be shown they have the power in a proper case to show clemency under Section 401, Criminal P.C.
11. We have perused the records of this case and find nowhere in them is it stated or suggested that the accused persons were starving or driven by necessity to steal. In the petition of complaint the accused were referred to as prominent men of the village. The trying Magistrate refers to them as men who appear to be 'all well off.' There is a suggestion that at some time before there had been a dispute between the complainant and some of the accused. Moreover, 50 to 60 maunds of paddy were stolen and only a small quantity-less than a maund left for the complainant and his family and dependants. Again, the theft was committed inside the complainant's house by people who are alleged to have been armed with lathis and spears and in the course of the theft had broken the complainant's hand and injured his head. It is one thing for starving men to steal to keep themselves alive; it is another thing altogether for well-to-do men to take almost the whole of a man's food and break his bones as well. The Magistrate had to take all these matters into consideration and it might well appear to him that the interests of justice would not be served by allowing this prosecution to be withdrawn. And it was for him to decide. The trying Magistrate did not act arbitrarily or even finally; he intimated that if further facts were placed before him to justify the withdrawal he was prepared to reconsider his order. That, it seems to me, was a perfectly proper judicial attitude to take up. However, he was not allowed to consider the matter further because on the next day the case was withdrawn from him by the District Magistrate and handed over to the Sub-divisional Officer, Sadar, the purpose of getting a decision at which the trying Magistrate had refused to arrive. The District Magistrate justifies what he has done by the Government circular. If the District Magistrate had read the Government circular carefully, particularly para. 3 (e) and para. 3 (d) he would have realised that the circular did not purport to authorise him to take the action he did. However, it is not a question of whether the District Magistrate correctly interpreted the Government circular; it is a question of whether the District Magistrate was entitled to do what he did. Certainly the District Magistrate has the power to withdraw the case from the trying Magistrate. But as was said hy Panckridge J., in 2. Shanta Ram v. Kanai Lal : AIR1934Cal137 , 'it is beyond argument that before such an Order is made the Magistrate must and should have reasons and those reasons should be such as the law regards as satisfactory from the point of view of principle.' Now, whatever that principle may be, the section should be used in the furtherance of the interests of justice according, to law and not in the frustration of it. In the present case the trying Magistrate had nearly finished the hearing of the case and he knew the facts of it better than the District Magistrate or the Superintendent of Police. He considered the application of the Court Sub-Inspector (the Public Prosecutor) in a proper way and was exercising his discretion judicially as the law intended him to. If a District Magistrate withdraws from a trying Magistrate a case, in which the trying Magistrate is exercising his judicial discretion, on the ground that the result is not, or may not be the result that he wishes and sends it to another Magistrate for the express purpose of getting the result he desires, then it is not justice according to law. The justice according to law is for the trying Magistrate to exercise his discretion judicially, if it is wrong the superior Courts to rectify it. If eventually the Government consider that notwithstanding the Court's decision clemency ought to be exercised, the dovernment may in a proper case exercise it. If District Magistrate can do what has been done in this case, the provisions of the law for securing justice according to law may be set at naught.
12. In my view the Order withdrawing this case from the file of Mr. S. Chatterjee was an improper Order and must be set aside. The Rule is made absolute and the case returned to Mr. S. Chatterjee for him to consider judicially on all the materials before him whether he can consent to the withdrawal and to give his decision accordingly and further deal with the case according to law. There is one other matter arising out of this ease which it is our duty to comment upon. It arises out of that part of the District Magistrate's Order which
it is urgent that the Government Order regarding clemency should be carried out. The case is therefore withdrawn to my file and transferred to Sub-Divisional Officer, Sadar, for favour of disposal.
13. The only inference that can be drawn from that is that the Sub-divisional Officer, Sadar, will make the Order which the District Magistrate desires and which he in turn thinks is what the Government desires. It would look as if the District Magistrate contemplated communicating his desire as regards the decision to be given to the Sub-divisional Officer which would be a wrongful interference with the course of justice. In another case which immediately preceded this case, Cri. Misc. Case 3. Hate mali Jamadar v. Emperor,Reported in : AIR1944Cal407 , the District Magistrate transferred a case from one Magistrate to another and gave this as his reason:
As the principal accused was a prominent public man, well known to the Exeoutive Officers in Piroj-pur, I felt that the case should be transferred to Barisal and selected Mr. S.K. Roy 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.
14. In the present case the District Magistrate has transferred the case from a member of the Judicial Branch to a member of the Executive Branch. It looks very much as if some District Magistrates regard trying Magistrates who are members of the Executive Branch of the Bengal Service as more likely in judicial proceedings to carry out the wishes of District Magistrates and Government than the members of the Judicial branch. This unfortunate impression will only be removed if both District Magistrates and trying Magistrates all make it quite clear that they will not submit to outside interference in judicial proceedings and will have them decided strictly according to law.
15. I agree.