1. The appellant Manmatha Nath Biswas was on 27th April last convicted of an offence against Section 19(f), Arms Act-viz., of having in his possession or under his control a revolver and six cartridges on 18th February. He was tried by the Chief Presidency Magistrate sitting as a Special Magistrate under the Bengal Emergency Powers Ordinance, 1931. Another man, Lalit Mohan Singha was tried together with him. The prosecution evidence was as follows: That these two persons had been seen at about 5 p.m. on 27th January standing and talking together for fifteen minutes in front of the office of a newspaper called 'Liberty' in the Upper Circular Road, after which they went together to the Sealdah crossing and separated, that some three weeks afterwards, viz., at about 6-30 p.m. on 18th February, they were again seen near to the same spot, but on the east side of the street where there are railway lines; that they loitered and talked together there for about an hour, after which they proceeded northwards along the street till they came to the crossing of Rani Swarnamoyee Road, where there is a petrol shop, that they stopped and loitered in front of that shop till a little before 9 p.m. when Sub-Inspector Chowdhury challenged Lalit and arrested him after a severe struggle: that the appellant Manmatha at once began to run away, but was stopped in a few yards by aconstable and did not resist arrest.
2. Both were there and then searched. In Lalit's right hand pocket was found a revolver wrapped in paper and in his left hand pocket were the six cartridges. Upon the appellant Manmatha nothing incriminating was found. The revolver was in working order and the cartridges fitted it. I should here carefully add that Sub-Inspector Choudhury says that the movements of the accused gave him the impression that they were waiting for some one and that opposite the petrol shop they were pointing this way and that moving about restlessly. Sub-Inspector Roy says that opposite the Medical School their movements became suspicious.' It appears that they had been pointed out to the officers as persons suspected of smuggling arms. The Special Magistrate convicted both accused under Section 19(f), Arms Act, and convicted Lalit under Section 20 also. He sentenced Lalit to six years rigorous imprisonment under Section 20 and the appellant to two years under Section 19(f) expressly acquitting him under Section 20. As regards the appellant, the Magistrate took the view that:
there cannot be a shadow of doubt that he was aware of Lalit's possession of the revolver, His presence at the place in question in Lalits company shows that he was aiding and abetting and sustaining him.
3. He does not however convict the appellant of abetment. He says that Section 34, I.P. C, applies to the case apparently because:
the circumstances show that they both had the same common object, viz., to possess the revolver for the purpose of committing terrorist crime or for furthering terrorist crime, e.g., by selling the revolver to some anarchist.
4. Accordingly he arrives at the conclusion that Lalit who had the revolver in his own pocket possessed it in such a manner as to show an intention to conceal it; that the appellant had the revolver in Lalit's pocket, but not in such a manner as to show an intention to conceal it. On 15th April, the prosecution case having closed, the trial was adjourned to the 25th for defence if any and argument. On the 25th no lawyer appeared for the accused. They were convicted on the 27th and the present appeal by Manmatha was signed and forwarded from jail on 23rd May. Under the Ordinance an appeal from a Special Magistrate is to be brought within seven days, Section 33(2) and this Bench has recently held that in view of' the terms of Section 29, Lim. Act, Section 5 thereof cannot be applied to extend the time prescribed by the Ordinance. We are therefore prohibited by Section 3, Lim. Act, from entertaining this appeal.
5. Mr. S.K. Basu for the appellant accordingly prays in aid our power of 'superintendence' under Section 107, Government of India Act, as the only remedy available to him in view of Section 39 of the Ordinance. That we have the power given by that section is to me reasonably plain. By Section 72, Government of India Act, an Ordinance has the like force of law as an Act passed by the Indian legislature and is subject to the like restrictions as the power of the Indian legislature to make laws. By Section 65 that legislature has no power to repeal or affect Section 107 unless expressly so authorised by Act of Parliament. By Sch. 5, Sections 106, 108(1), 109 and other sections are particularised as sections which may be repealed or altered by the Indian Legislature but Section 107 is not included, and therefore survives not with standing the wide language of Section 39 of the Ordinance: of. Emperor v. Balkrishna Hari Phansalkar AIR 1933 Bom 1. In the present case Mr. S.K. Basu has contended that the power of superintendence imposes upon this Court a duty to see that justice is done by the subordinate Courts in every case and that this duty rests upon the Court independently of any action which the aggrieved party may take or may not take. He founds upon the observations of Woodroffe, J. in Lekraj Ram v. Debi Prosad (1908) 12 CWN 678, to the effect that there is no form of judicial injustice which this Court cannot, if need bo reach and that Judges have repeatedly refused to make any declaration limiting their powers under the Charter. He further contends that as the accused has lost his right of appeal by reason of the shortness of the period of limitation we should on that ground be the more ready to examine his case upon the merits under Section 107 since we have no power to extend the time for appeal. Mr. Khunkdar on the other hand, besides arguing that the Magistrates conclusions are well founded contends that when the time is elapsed for filing an appeal the Court in a case where the right of appeal existed should not exercise its power of superintendence.' In my judgment both these lines of argument are to be rejected and are contrary to the weight of authority in this Court. Soon after Section 15, High Court's Act, of 1861 had introduced the word superintendence' to describe the power in question it was pointed out by Norman, J., in Gopal Singh v. Court of Wards (1867) 7 WR 430 that it had 'a legal force and signification which are perfectly well known to the legislature.' He referred to Blackstone's 'Commentaries' and Bacon's Abridgement' as showing that the writs of mandamus and prohibition were methods of exercising this power and concluded:
This power of superintendence is entirely distinct from the jurisdiction to hear appeals. If the inferior Court after hearing the parties comes to an erroneous decision either in law or fact on a matter within its jurisdiction the Court having power of superintendence never interferes. The only mode of questioning the propriety of such a decision is by appeal.
6. An elaborate review of the decisions of this and other High Courts upon the subject is to be found in the Patna Case Paramesivar v. Kailaspati (1916) 1 Pat LJ 336, a case which like most of the Calcutta cases arose out of proceedings under Section 145, Criminal P.C. for which before 1923 revision' under that Code did not apply. In the Full Bench case of Sukh Lal v. Tara Chand (1905) 33 Cal 63 Maclean, C.J., described the power of superintendence as somewhat analogous to that of the King's Bench Division to interfere by mandamus, and in Kedar Nath v. Khetra Nath (1907) 6 CLJ 705 Mitra, J., said that it could only be exercised in cases of non-exercise or illegal exercise of jurisdiction. I agree with Roe, J., in the Patna case that superintendence is not a legal fiction whereby a High Court Judge is vested with omnipotence but is as Norman, J., had said a term having a legal, force and signification. The general superintendence which this Court has over all jurisdiction subject to appeal is a duty to keep them within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. It does not involve responsibility for the correctness of their decisions, either in fact or law.
7. Thus in England a mandamus to hear and determine according to law does not mean that the inferior tribunal is ordered to give a correct decision nor does prohibition lie to correct a wrong decision on the merits. The limits put upon appeals by the Indian Legislature are a part of the judicial system which it is just as necessary for this Court to enforce under Section 107 as any other feature of that system. Upon the Indian cases however I doubt whether sufficient attention has been paid to the fact that as regards Magistrates in particular the King's Bench in England has made extensive use of the writ of certiorari to bring up and quash convictions. Prohibition and mandamus are not I think the sole forms of superintendence which an Indian Court should bear in mind as a guide to the character of the power conferred by Section 16 of the Act, 1861. Defects of jurisdiction, fraud on the part of the prosecutor and error on the face of the proceedings are all good grounds for certiorari. Thus in R. v. John Smith (1800) AIR 588, where the evidence was set out in the conviction or order and it appeared that there was not proper evidence to be considered by the Magistrates in support of a point material to the conviction, the conviction was quashed. As Lord Kenyon's judgment shows, it is certainly not enough that the Magistrates have misconceived a point of law or come to a wrong decision on the facts. For this purpose the Magistrate should be regarded as the person to judge the weight of the evidence.
8. But if there is no evidence at all of the facts charged or if on the Magistrate's own view of the facts proved the offence was not in law committed, I think that an Indian High Court acting under Section 107 will not be misconceiving the character of its power if it interferes. In this respect only would I add anything to the valuable and concise statement given by Chamier, C.J., in the case of Parameswar v. Kailaspati (1916) 1 Pat LJ 336 at p. 340. 'The face of the record' meant a different thing in the old English cases from what we naturally mean by it in India today but what I have just said is I think the substance and meaning of the English rule in terms applicable to Indian practice. It should perhaps be made clear that the case where on the Magistrate's own view of the facts the offence was not in law committed is an entirely different thing from the case where the Magistrate in his judgment has not specifically mentioned every element in the offence. It is practicable that the High Court should see that no man is convicted without a legal reason. Indeed it is idle to give a remedy for irregularity in procedure if remedy is to be refused where, after a proper trial, the final order of the inferior Court is without any legal foundation. It is not practicable that this Court should re-try all cases of the lower Courts and that it should do so upon no settled principle but in cases arbitrarily and sporadically chosen is highly anomalous and undesirable. The power of superintendence is a power of a known and well recognized character and should be exercised upon those judicial principles which give it its character. The matter cannot be better put than in the words of Lord Denman, C.J., in Queen v. Bolton (1841) IQB 66 at p. 76:
It is of much more importance to bold the rule of law straight, than from a feeling of the supposed hardship of any particular decision, to interpose relief at the expense of introducing a precedent full of inconvenience and uncertainty in the decision of future cases.
9. This is in my opinion more in consonance with the nature of the power of superintendence, with judicial principle and with the due administration of justice itself, than is the alternative procedure which begins by refusing to recognize any limits to the power or any principles as fit to govern its exercise and ends by vouching discretion for the result, after an open rehearing of each case. So far from being tempted to extend the grounds of interference under Section 107 by the circumstance that the accused has allowed his right of appeal to become barred, I think that his difficulty is increased by the fact that he had such a right. Yet if he loses his rights as an appellant by a delay beyond seven days I cannot think that it is possible on that account to, refuse him the much more limited right to complain of his conviction under 8. 107. The circumstances are very strong to excuse his small delay.
10. By the ordinary standard for such matters in this Court he would have 60 days: he petitioned within 27 days. The matter may be tested thus. Suppose a man, ignorant and in prison, without legal assistance or knowledge of our special or general law, were to complain after seven days from his conviction that the Special Magistrate was not qualified as such, or that the case was not within his jurisdiction, could this Court because of the right of appeal provided by the Ordinance refuse to entertain such an objection. Surely not. Better reason must be given for refusing relief against a contempt of the Crown. My view is that there is all the difference between an applicant who comes into Court with such a case and one who comes with a general objection to the justice of his conviction on the merits; that English practice shows that it is quite practicable, if none too easy, to draw a line of distinction between cases of the one kind and of the other and very necessary that the line should be kept clear and straight; that it is not a question of what the Court will ordinarily do in this jurisdiction but a question of what the scope and object of this jurisdiction is. The limit set to the right of appeal is not a limit to all remedy against usurpation of authority.
11. In the present case the accused cannot in my judgment dispute the jurisdiction of the Magistrate to determine the case but he is in a position to present his case as follows: He need not ask us to disbelieve any of the prosecution evidence but says that it does not amount to proof or indeed to any evidence that he knew of Lalit's possession of the revolver, or, if he knew, that he was abetting Lalit's offence of possessing it; still less that he himself was in possession or control of the revolver whether jointly with Lalit or otherwise. He says that the Magistrate has upon no evidence convicted him of possession by reason as his judgment shows of an erroneous notion that Section 34, I.P.C. enabled him to do so, and that his findings as to Section 19(f) and Section 20 are contradictory and betray the illegality of the conviction. Now, in my judgment the finding that the accused knew of Lalit's possession of the revolver is not a finding without any evidence though I do not think that the evidence carries the matter beyond the realm of suspicion. On the Magistrate's own view of the facts however I do not see how he could in law convict this accused under Section 19(f). There is no evidence that the revolver in Lalit's pocket belonged to this accused and there is nothing to show that if this accused had asked for it he would not have met with the reply: 'Certainly not. It is my revolver.' No doubt if, both men acting together to shoot X, Lalit had fired the shot, Section 34 might apply to render Manmatha guilty of murder or of wounding. Again if the Magistrate had found as a fact that the two were in joint possession of the revolver the question before us would have been different.
12. But in what way Section 34 applies to show that Manmatha was in possession or control of the revolver. I do not understand. With all possible respect to the learned and very able Magistrate, this conviction rests in the end upon no foundation in the evidence or in the findings and I think it should be set aside under Section 107. We were asked to substitute a conviction for abetment, but we would only do that if the accused had an opportunity to meet a case based upon Section 28, Arms Act, and if we ourselves were satisfied with the proof of the elements of that offence. Neither condition is satisfied. I propose that we should treat this petition of appeal as an application under Section 107, Government of India Act, direct that the conviction be set aside and that the accused be acquitted and released.
13. I agree.