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Kumar Purnendu Nath Tagore Vs. Kalipada Dutt and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 620 of 1956
Reported inAIR1956Cal513,1956CriLJ1196
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 252(2) 352, 503 and 561A; ;Calcutta High Court Criminal Rules and Order - Rule 63
AppellantKumar Purnendu Nath Tagore
RespondentKalipada Dutt and ors.
Appellant AdvocateArun Sen and ;Amiya Lal Chatterji, Advs.
Respondent AdvocateA.K. Sen and ;T.C. Nath, Advs.;J.P. Mitter and ;B.P. Gupta, Advs.
Cases ReferredRam Chandra v. Rakhal Das
- .....on her.12. this, to my mind, is an abuse of the court's process which we cannot allow. i think, therefore, that while the order of the magistrate should be set aside and it will not be proper to issue any commission on any of the grounds mentioned in section 503, criminal p. c., we should, in tine exercise of our inherent jurisdiction, direct the. examination of this lady on commission.13. i would, accordingly order that the orders passed by the magistrate on the 7th may and the 11th may be set aside and that the magistrate do issue a commission to the chief presidency ma- gistrate for examination of this witness. the chief magistrate should, on receipt of such commission, appoint a presidency magistrate -- who need not necessarily be this trying magistrate --to examine the.....

Das Gupta, J.

1. On the complaint of the present petitioner Kumar Purnendu Nath Tagore the Additional Chief Presidency Magistrate, Calcutta, issued processes against one Saliendra Kumar Chakraborty for an offence under Section 500, I. P. C. and against some other persons for an offence under Section 500/ 109, I. P. C. The case was transferred to Mr. M. C. Sarbadhikary, Presidency Magistrate, for trial but after some witnesses had been examined by him he went away on transfer.. His successor directed a fresh trial. Lady Ranu Mookerjee of No. 7 - Harrington Street who , it is said, is the President of the National Academy of Pine Arts, was summoned to appeal as a witness for the complainant on 28-11-1955. On that date she filed an application praying that as her heart was very weak, she would not be able to attend the Magistrate's court which was on the first floor and she might be examined on commission. The Magistrate refused the prayer but ordered that he would examine her on the 6th of December in a ground-floor room.

2. For reasons which are not relevant to the decision of the present application, she was not . examined on the 9th of December. A fresh summons was served on her directing her to appear in Court to give her evidence in the case on 7-5-1956. On 2-5-1956, she filed another application praying that she might be examined on commis-sion. The relevant portion of this application is in these words :

'Your petitioner is a Hindu Brahmin lady and although she is not a purdanashin is wholly unaccustomed to appear in a public place like a Court and it will cause her great hardship and em-barassment to do so. Further your petitioner has not been for some time in good health. She is however fully conscious of her duty to this Honorable Court to render assistance by giving such evidence as she can and she is ready to do so before Your Honour or any Commissioner that may be appointed.

In the premises, your petitioner most respectfully submits that the ends of justice will be met and served by her being permitted to be examined either on commission by a Commissioner or by Your Honour but in some place (considered to be convenient by Your Honour) other than the Court building. Your, petitioner is ready and willing to bear and pay the costs of the commission or any costs of or incidental to her examination outside Court buildings.

In the circumstances, it is prayed that Your Honour would be so kind as to examine the petitioner on commission or make such other order as to Your Honour deems just.'

On the 7th May the learned Magistrate passed an order, the material portion of which runs thus :

'.... .I think in view of the position she holds in society as stated by the learned counsel for her, the embarrassment she says she feels in appearing in a court of law may not be considered as quite unnatural or ummderstaudable. As she is a lady and only a witness I am prepared to accommodate her and hold court for examining her in a building not far oil from the court that can be arranged. The learned Counsel for Lady Mukherjea assures that he will bo able to arrange this in the Wallace Building opposite the Bankshall courts on the Bankshall Street. Should he be able to arrange this, I have no objection to hold the court there for her examination arid as the building is just opposite these courts, it should not inconvenience? any of the parties, either the complainant or the accused. The learned Advocate for the complainant objects to holding the court outside the court buildings. The accused have no objection. The learned Counsel for Lady Ranu Mukherjea offers to bear all the expenses incidental to holding the court in the Wallace Building and get the necessary permission for use of a portion of the premises. The case is adjourned to 17-5-1956 at 2-30 P.M. for examination of Lady Ranu Mukherjea and also complainant if time permits at Wallace Building, -- Bankshall Street.....'

3. On 11-5-1956, the Magistrate, on being informed by the owners of the Wallace Building that the Board room of the Company could be placed at the disposal of the Court up to 3-30 P.M. only and suggesting that if the room was required for a longer period, some other date be fixed, fixed 21-5-1856, at 2-30 P.M. for the examination of the witnesses at Wallace Building.

4. On the 14th of May, on the application of the complainant the present Rule was issued on the Chief Presidency Magistrate and the accused persons to show cause why the orders of the 7th May and the 11th May should not be set aside. Though no Rule was issued on Lady Ranu Mukherjea, she appeared in this Court through her lawyer and we thought it proper to hear Mr. J. P. Mitter, Counsel, on her behalf as tihe orders complained of were made on her prayer and she is vitally interested in them.

5. On behalf of the petitioner it was contended before us by Mr. Arun Sen that the order of the Magistrate that he will hold court at someplace other than the court house for the examination of the witnesses was highly improper. Mr. Sen argued that from the order passed by the Magistrate it appears that in the Magistrate's view the mere fact that somebody belonged to high society justified his thinking it undignified for him to appear in the public court house and made it proper that the court should be held at some other place to accommodate such a witness. Mr. Sen submitted that orders like these would be harmful to the administration of justice and were so improper that they should be set aside by us.

6. In my judgment, there is considerable force in what Mr. Sen has said. While it may not be wholly correct to say that the mere fact that the witness occupied a high place in society was the only reason which induced the Magistrate to make the order, it does appear that this was the main consideration which weighed with him. The reasons why in the absence of extraordinary circumstances Magistrates and Judges should do their judicial work in public court houses where they usually sit, instead of private buildings selected for particular cases, are too obvious and too numerous to be mentioned. One reason that may, however, be mentioned is that it is difficult, if not impossible, to secure compliance with the requirements of law as laid down in Section 352, Criminal P. C. if Court is held in a private building. Another is that a private building, selected ad hoc for the purpose of a particular case, will necessarily lack the solemnity and dignity of a public court house, attributes which undoubtedly help in the proper and impartial administration of justice, with corvectitude and decorum. While it is true that much depends on the personal qualities of the Judge or the Magistrate and the lawyers, I do not think it can be gainsaid that the atmosphere of the court also plays an important role in the proper administration of justice. Hallowed by the administration of justice for long years gone by and by the promise of administration off justice for years to come, public court houses may well be said to be temples of justice where all who seek justice may enter and where nons, being called on to help in justice being administered, should refuse to come. That justice should be properly administered is the interest of all and not merely of the parties in a particular case. It is for this reason that the highest in the land together with the lowest have entered the portals of courts of law without hesitation and with prayerful humility. It is distressing, therefore, that anybody in a high position in society should ask to be exempted from appearing in a public court house merely because of a feeling of embarrassment.

7. Mention may be made in this connection of Rule 63, of the Criminal Rules and Orders made by this Court. This rule provides that the Magistrates should do their judicial work in public court houses. Rule 63 runs as follows;

'Judicial work shall ordinarily be done in public Court Houses and not in the private chamber or residence of the Judicial Officers.'

The use of the word 'ordinarily' makes it clear that in extraordinary circumstances a Magistrate may do judicial work in places other than the public court house. The advantages to all that the Magistrate should sit in his usual court room during the prescribed hours are so outstanding, however, that to justify any departure from the rule, circumstances must be very very extraordinary indeed. It may be that due to some natural calamity like a storm or an earthquake, it may become unsafe for the Magistrate, the parties, the witnesses and the lawyers to remain in the court building. That would certainly justify the hold-ing of the court outside the court house. There may be other circumstances which may make it impossible to ensure the security of the Magistrateand the witnesses and others concerned, in the public court house. That, I think, may justify the holding of the court elsewhere. But that a witness feels embarrassed in appearing in a court is not an extraordinary circumstance by any means. Indeed, except for some curious people who love to sec the courts of law in action or jurists or students of human behaviour, most people other than the Judges, Magistrates, lawyers and court's staff feel it embarrassing to appear in a court of law. The witness box in a court of law is one of the most embarrassing places that I can think of. There are few people in any class of society, I believe, with the possible exception of some, but not all, lawyers, who would not feel embarrassed to appear in the witness box. If a feeling of embarrassment on the part of a witness was to be taken to be such an extraordinary circumstance as to require a Magistrateto do his judicial work at places other than the public court house, these court houses might well be closed down. The tact that the feeling of embarrassment is due to the witness belonging to a high class society does not make the slightest difference. To hold that because a person in high society feels more embarrassed in appearing as a witness in a court than other people, he is entitled to the privilege that the Magistrate should hold his court elsewhorn would amount to laying down one law for people in high society and another for humbler folk. To do that will be sacrificing all that this Court has stood for and inflict a shameful blemish on the fair face of .iuslicc in this land. I am clearly of opinion that the embarrassment that the witness feels due to her high place in society or became of her being a Brahmin lady cannot justify the holding of the court at some place other than the court house.

8. There is a statement in the petition thatthe witness has not been in good health for sometime. That may be a reason for adjourning herexamination but not for holding the court else-where. I have, therefore, come to the conclusionthat there is no justification whatsoever for theorder passed by the learned Magistrate that hewould hold, court elsewhere for the examinationof this witness.

9. On behalf of the lady, Mr. Miller pointed out that her main prayer was not that the court should be held elsewhere but for her examination on commission and even if the Magistrate's order that he would himself hold court at the Wallace Building for her examination be not affirmed by us, it will be proper for us to order in the special circumstances the examination of this witness on commission. The relevant portion of 8. 503. Criminal P. C. which provides for examination of the witnesses in criminal cases on commission is in these words :

'Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a High Court, Court of Session, or any Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, such Court or Magistrate may dispense with such attendance and may ipsue a commission for the examination of the witness...'

Mr. Mitter's argument is that in this case the attendance of his client in Court cannot be procured without very great inconvenience to her, inconvenience which, he submits, would be un-reasonable. Attendance in Court can never be convenient to any person and the mere fact of personal inconvenience cannot ordinarily justify, in my opinion, the issue of a commission. It is true that this Court has in several cases (vide In Re. Hurro Soondery 4 Cal 20 (A), In re Din Tamil Debi, 15 Cal 775 (E), Hem Coomaree Dassee v. Queen Empress, 24 Cal 551 (C), Ram Chandra v. Rakhal Das, 1914 Cal 325 (AIR, V 1) (D) directed or approved of issue of commissions for the examination of witnesses in criminal cases obviously on. the ground that the appearance of a Purdanasnhin woman in court is attended with such inconvenience as would be unreasonable. The strictness of purda even among Purdanashin women in this country, has, however, largely disappeared since the date of those decisions and it may be necessary on a proper occasion to consider whether those decisions should be followed now. Admittedly however, this witness is not Purdanashin. undoubtedly, it will be inconvenient to her, as it is inconvenient almost to everyuody, to appear in court but such inconvenience cannot be compared with the inconvenience that a Purdanashin woman would feel in appearing in court. In my judgment, no case has been made out for issue of a commission under Section 503, Criminal P. C.

10. Mr. Mitter has next argued that the purpose why the complai'oaiit has been insisfing oil the lady's appearance in court is not the bona fide purpose of obtaining her evidence in support of his case but the ulterior purpose of getting an opportunity of insulting her in public in the witness box. I suggested, to Counsel that if, in fact, the examination was not really necessary for the ends of justice, it would be proper for the Magistrate to recall the summons. Mr. Mitter seems to think that even if it appeared to the Magistrate that the examination of the witness was not really necessary but was being sought by the complainant for some ulterior purpose, the Magistrate, having once issued the summons, was powerless to recall it. It would, in my opinion, be extremely unsatisfactory if that were the legal position and, in my opinion, that is not the legal position. Section 252, Criminal P. C. provides that the Magistrate shall ascertain from the complainant or otherwise the names of any person likely to be acquainted with the facts of the case and to be able to give evidence for the Prosecution and shall summon such of them as he thinks necessary. This easts a duty on the Magistrate to decide for himself which of the witnesses that a complainant wants to be examined for him it is necessary to summon and to summon only such of these as he thinks necessary and to refuse to summon others. It very often happens in practice that Magistrates do not, before ordering issue of summonses, address to themselves the question which of the persons it is necessary to summon. They, therefore, issue summonses as a matter of course on all the persons for whom the complainant ask for summonses. This is partly due to the great pressure under which Magistrate work and partly perhaps due to the not unreasonable assumption that a complainant would not ask for a summons on an unnecessary witness. Whether or not summons, has been issued after duo consideration of the question or without such consideration, it may turn cut in a particular case that the examination of the witness is not necessary for the ends of justice so that the Magistrate has committed an error in summoning him. I can see no reason why it should not be open to the Magistrate to correct that error. It is elementary that it is the right and duty of every judicial officer to correct errors of this kind. If a Magistrate after acquitting or convicting a per-son finds that he has made an error in so doing, he is powerless to correct such an error; for he has lost jurisdiction. That difficulty does not exist in a case where he flnds that he has wrongly issued summons against a person whom it was not necessary to summon. I think a Magistrate has the power in such a case to recall the summons.

11. As, however, the person summoned has not in this case prayed for recall of the summons, it will not be proper for us to direct the magistrate to consider that question. What Mr. Mitter has tried to persuade us, however, is that if it be the duty of the Magistrate to recall a summons wrongly issued, it will be wholly unjust to compel his client to appear in court if, as he has tried to convince us, her evidence is not only not necessary but the prayer for summons on her was made for ulterior motive. For a proper decision of this question it is necessary to take into consideration the main allegations on which the Prosecution case is based and the evidence which the complainant proposes to adduce through this witness. In the petition of complaint filed by the present petitioner he does not himself allege facts constituting any offence. He refers, however, to a previous petition of complaint filed by his Secretary Krishna Nath Dutt and states that 'the facts mentioned therein are true' to his knowledge and belief. This is an unusual way of making a complaint, but leaving that out of consideration I find on an examination of the petition of complaint together with Krishna Nath's application filed earlier that the substance of the Prosecution case is that some leaflets containing defamatory statements against the petitioner were distributed by the accused persons, that the reason behind this was that he after having resigned the Chairmanship of the Academy of Fine Arts had started a rival academy; and that these pamphlets originated from 27, Chowringhee Road, Head Office of the Academy of Fine Articles It is said that Ranu Mukherjea is the present President of the Academy of Fine Articles It appears from para 9 of the application filed in this Court that all that the complainant wants to prove by examining the lady is the alleged fact of four documents being signed by her. We have examined the documents and while I am anxious to say nothing that might prejudice a fair trial of the case, I am bound to say for the purpose of a proper decision of the present application that it is difficult to see how the question of these documents being signed by this lady can be of any assistance worth the name to prove the case against the accused. I refrain from examining the question whether the evidence proposed to be adduced through the lady is relevant at all. Assuming it is relevant, there can be little doubt that its evidentiary value will be negligible. Mr. Mitter drew our attention to the petitioner's statement in the application in this Court that it was more than probable that this witness would have to be declared by the Court a hostile witness. Apparently, the complainant expects that Lady Ranu Mukherjea would deny that these documents bear her signature; that she would then be declared hostile and then the Court's permission would be asked for to cross-examine her to prove that she is not a truthful witness. We asked Mr. Sen whether the complainant intended to prove through this witness any other fact than that these documents bore her signature. Mr. Sen was unable to mention anything else. On a consideration of all these circumstances, I am of opinion that Mr. Mitter's submission that the purpose why the petitioner has cited the lady as a witness is not to prove his case against the ac-cused persons but for insulting her, as he believesthe lady will feel insulted if she has to appear in a public court house, is very probably true. I have already expressed my view that it is not right that any person should feel insulted in having to appear in a court of law. That, however, does not alter the probability of the fact that the complainant knows that she will feel insulted and that this knowledge was the main reason why he has cited her as a witness and asked for a summons on her.

12. This, to my mind, is an abuse of the Court's process which we cannot allow. I think, therefore, that while the order of the Magistrate should be set aside and it will not be proper to issue any commission on any of the grounds mentioned in Section 503, Criminal P. C., we should, in tine exercise of our inherent jurisdiction, direct the. examination of this lady on commission.

13. I would, accordingly order that the orders passed by the Magistrate on the 7th May and the 11th May be set aside and that the Magistrate do issue a commission to the Chief Presidency Ma- gistrate for examination of this witness. The Chief Magistrate should, on receipt of such commission, appoint a Presidency Magistrate -- who need not necessarily be this trying Magistrate --to examine the witness.

Guha, J.

14. I agree.

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