1. This Rule was granted by my learned brother, Mr. Justice Panton, and me, calling upon the Chief Presidency Magistrate and the opposite party to show cause why the conviction of, and the sentence passed on, the petitioner should not be set aside on grounds Nos. 1, 8 and 9 stated in the petition.
2. The petitioner was convicted by an Honorary Presidency Magistrate for assault under Section 323 of the Indian Penal Code and sentenced to pay a fine of Rs. 50. The decision was given on the 23rd of March 1925.
3. The petitioner is a sergeant in the Calcutta Police attached to the Kumartoli outpost and the assault is alleged to have been committed on the 19th of February 1924.
4. The case for the complainant, Kedar Nath Ghose, who is a taxi-cab driver shortly stated, was as follows: He was driving a taxi-cab near a tea-shop in Ahiritola Street when some person from the tea-shop summoned him to stop. He stopped, and the man who called him asked him to wait two or three minutes while he bad some tea. The complainant, therefore, drew up his taxi and waited. The petitioner came upon the scene and asked him to move his car. The complainant gave him the explanation which I have already mentioned, and then it was alleged, without any cause, as the complainant (the taxi driver) was about to start his taxi, the officer assaulted him, poked him with a stick and then gave him a blow on the head. The blow on the head caused an abrasion of the skin and bleeding. The sergeant then blew a whistle, which brought two or three constables to the spot, dragged him out of the car and took him to the thana. That is the complainant's story.
5. The case for the petitioner is that he found the complainant's oar stationary, and on asking the complainant to move it, he was told that he stopped there for the purpose of getting a cup of tea. The petitioner then told him that he must not stay there and asked him to move his ear, which he refused to do. The petitioner also asked for his license, but the complainant refused to produce it. The petitioner then attempted to arrest the complainant with the object of taking him to the thana because of the obstruction which he had caused and because he refused to produce his license. There was a scuffle and the petitioner had to get assistance, and in the course of the scuffle the complainant's head was hurt by his falling on the ground.
6. The Rule was granted on three grounds: the first was 'that the learned Magistrate's judgment was not in accordance with law inasmuch as he had not considered the evidence of the witnesses examined on behalf of the defence.'
7. On further examination of the judgment, and by reason of the explanation of the Magistrate, I am of opinion that there is no substance in that ground.
8. Another ground on which the Rule was granted was that ' the learned Magistrate was wrong in holding that the statements of Kedar Nath, Anath Motilal and Harendra Chakravarty before the Deputy Commissioner of Police were not on the record and the said witnesses were not confronted with them.' This ground, as far as I can see upon further information, now needs consideration only with regard to the complainant Kedar Nath and Anath.
9. It appears that the complainant was examined by the Deputy Commissioner on the 22nd of February, that is to say, three days after the event, and ho was represented by a pleader; the Deputy Commissioner took down his statement in writing; and, there is no doubt that the complainant, when he was before the Magistrate in this case, was cross-examined with regard to certain statements which he was alleged to have made to the Deputy Commissioner and which the Deputy Commissioner had had taken down in writing. They were put to the complainant for the purpose of showing that the complainant's evidence could not be relied upon by reason of the fact that the complainant had made statements to the Deputy Commissioner which were inconsistent with parts of the evidence which he had given before the Magistrate.
10. The Magistrate stated in his answer to the Rule as follows: ' With regard to ground 8 of the petition this Court considered the statements of the witnesses Kedar Nath Ghose-and not Khagendra Nath, as stated in the petition evidently through an oversight-Anath, Nati Lal and Harendra Chakravarty before the Deputy Commissioner of Police inadmissible in evidence for the following reasons.' I need not deal with this point at any length because the learned vakil, who appeared for the Crown, did not endeavour to support the contention, which was put forward by the Honorary Magistrate, in this respect, and he stated that he could not contend that the statement which Kedar Nath, the complainant, had made to the Deputy Commissioner was inadmissible. In my opinion the learned vakil for the Crown was correct in his opinion and took the right course in not contending that the statement was inadmissible. In my judgment it was admissible.
11. It, therefore, appears that in this respect there was ground for this Rule being granted.
12. The next question which has to be considered is whether the Rule should be made absolute by reason of the matter to which I have just referred.
13. In my opinion the statement which the complainant made to the Deputy Commissioner was of importance, first because it was made within three days of the occurrence and the evidence given by the complainant before the Magistrate was given some months after the event. Therefore, it is probable that the complainant would be more accurate, when he was making his statement three days after the event, than when he was giving evidence some months after.
14. In the second place the statement which the complainant made to the Deputy Commissioner contained some important admissions; for instance, the complainant said: ' I stopped my car. I was going to get my flag down, but the would-be passenger told me to wait a couple of minutes. I then ordered for a cup of tea from the tea-shop keeper who sent me a cup of tea. I was drinking it. Just at this time a sergeant came and told me to move on, and I told him that I was waiting because a Baboo had told me to wait. Saheb asked for my license. I did not show him the license, but I was begging the sergeant to excuse me at which the sergeant abused me.'
15. The statement refers to two matters: first that the complainant was having a cup of tea; and secondly that he was asked for his license and he did not produce it. Both these statements the complainant denied when they were put to him when he was giving evidence before the Magistrate. I do not place much importance upon the point whether the taxi-driver was having a cup of tea, or was not having a cup of tea, but the other matter is of importance because if he was asked for the license and he refused to produce it, I understand that it would be the duty of the petitioner to take him into custody, and if the complainant resisted, the petitioner would be justified in using the necessary amount of force to carry out his duty. To what extent the mind of the Honorary Magistrate would have been influenced, if he had understood that the above-mentioned evidence was admissible and that he must take it into consideration it is difficult to say. It is true that in his judgment the Magistrate did refer to this statement having been put to the complainant when he was giving evidence, but I do not find that the Magistrate at any time in his judgment came to any definite decision whether the complainant was asked for the license and whether ho refused to produce it. He has referred to the fact that the complainant was charged with obstruction and was convicted of causing an obstruction; and the Magistrate seems to have thought that there the matter ended and that he need not consider that question further.
16. In my opinion it was essential in this case that the Magistrate should make up his mind in the first instance as to how the scuffle began. Did it begin by an unwarranted assault by the petitioner upon the complainant, or did it begin by reason of the petitioner asking him for the license and by reason of the complainant refusing to produce it?
17. It seems to me quite possible that if the Magistrate bad applied his mind to that view of the case he might have come to a contrary conclusion.
18. For these reasons, without expressing any opinion upon the merits of the case, I am of opinion that this Rule must be made absolute.
19. In the ordinary course, and especially having regard to the fact that the petitioner was in the position of a sergeant of the police, I should have thought it necessary to remit this matter to the Magistrate in order that it might be retried, the Magistrate giving due weight to the evidence which he thought was inadmissible but which I have decided is admissible.
20. But this is, I trust, an exceptional case; and, in my opinion, for the reasons to which I will presently refer, it would be wrong for this Court to direct a further trial.
21. The Rule, therefore, must be made absolute; the conviction and sentence set aside; and, the fine, if paid, will be refunded.
22. I have already stated that the occurrence took place on the 19th of February 1924, and the matter was eventually decided by the Magistrate on the 23rd of March 1925, more than a year after the event. We were informed that the proceedings against the petitioner ware instituted on the 20th of March 1924, which was, as my learned brother reminds me, the day following that on which in the proceedings against the complainant were, started in respect of the alleged obstruction. We were informed that the hearing of this case did not begin until the 25th of August 1924, as I understand, because the other case (the prosecution of the complainant) was taken up first and was not concluded until about that time.
23. In my judgment there are not sufficient materials before this Court to enable it to form any estimate as to what was the reason, or what ware the reasons, for the extraordinary delay which occurred in the disposal of this case. It is only necessary to mention one or two facts to see that some steps must be taken to prevent such delays occurring in the future. This was a simple case-an ordinary assault case-which in my judgment ought to have been disposed of within a week or so after the event which happened on the 19th February 1924. Instead of that, I find that witnesses were examined in August, September, October and November, 1924 and the decision was not given until March 1925. Whether this is considered from the point of view of the complainant, or from the point of view of the petitioner, such a delay as took place in this case is inexcusable having regard to the simple nature of the case, and it might easily amount to a denial of justice. I desire to make it clear that I do not intend to make any reflection upon the Honorary Magistrate, because, as I have already said, I have not sufficient materials to enable me to specify what was the cause of the delay, and, further, it is evident that the Magistrate took great care with the case.
24. The fact, however, remains that it was more than a year before this simple case was disposed of; and my learned brother and I are of opinion that it is our duty to call attention to it and direct that a copy of our judgment be sent to the Government of Bengal.
25. I entirely agree with the judgment of the learned Chief Justice in this matter. I also think that the learned Magistrate ought to have gone right back to the very beginning of the events leading up to the assault, and from that point of view it was of very great materiality to consider the question which has been raised of the demand for the production of the license by the accused from the complainant.
26. In so far as the learned Magistrate has stated in his explanation that he considers the previous statement of certain witnesses inadmissible in evidence. I only wish to say that it is abundantly clear to my mind that the evidence was admissible under Section 155, Sub-section (3) of the Evidence Act subject only to this: that the provisions of Section 145 of the Evidence Act had been complied with, in the matter of putting the specific parts of it, which were to be relied upon to the witnesses in their cross-examination. That in fact was done in at least two cases. That evidence was admissible.
27. I desire to associate myself entirely with what has fallen from the learned Chief Justice with regard to the delay which has taken place in this case. I have not been able to go in detail into the matters which would enable me to say upon whom the blame rests. While I desire also to associate myself with what has been said about the great care which the Magistrate seems to have applied in coming to his judgment in the case, it seems inconceivable that a simple assault case which ought to have been disposed of within a few days of the events or, at any rate, within a few days of the complaint, should spread itself over a period of more than a year before the decision was arrived at. Such delay is only inviting evidence which cannot be relied upon. The longer the period allowed to elapse from the time of the event to the time when the witnesses give evidence the greater the probability of confusion and of the truth being obscured, particularly in a case like this where the accused happens to be a police officer, and the alleged offence arises out of his conduct during the course of his duties.