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Sudhindra Nath Dutt Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Appeal No. 12 of 1955
Judge
Reported inAIR1957Cal677,1957CriLJ1245,62CWN1
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 423, 526 and 556
AppellantSudhindra Nath Dutt
RespondentThe State
Respondent AdvocateG. Gupta Bhaya and ;Bimal Chatterji, Adv.
DispositionAppeal dismissed
Cases ReferredSee Rameshwar Bhartia v. State of Assam
Excerpt:
- chakravartti, c.j.1. the appellant sudhindra nath dutt was convicted by sen j., at a sessions trial held on the original side of this court on a charge under section 120-b, read with sections 477a and 408 of the indian penal code and seven other charges of specific offences under section 477a. the verdict of the jury was divided in the proportion of 6 to 3. the learned judge sentenced the appellant to rigorous imprisonment for four years on the first count, but as regards the remaining counts, he did not pass any separate sentence.2. the offences charged against the appellant were alleged to have been committed by him in his capacity of managing director of a bank, called the calcutta commercial bank. he was an accused in several other trials held at the same sitting of the criminal.....
Judgment:

Chakravartti, C.J.

1. The appellant Sudhindra Nath Dutt was convicted by Sen J., at a Sessions trial held on the Original Side of this Court on a charge under Section 120-B, read with Sections 477A and 408 of the Indian Penal Code and seven other charges of specific offences under Section 477A. The verdict of the jury was divided in the proportion of 6 to 3. The learned Judge sentenced the appellant to rigorous imprisonment for four years on the first count, but as regards the remaining counts, he did not pass any separate sentence.

2. The offences charged against the appellant were alleged to have been committed by him in his capacity of Managing Director of a bank, called the Calcutta Commercial Bank. He was an accused in several other trials held at the same sitting of the Criminal Sessions for other offences alleged to have been committed in connection with the affairs of the same bank. At all those trials he was further convicted and the sentence passed on one of the convictions was rigorous imprisonment for seven years.

3. The appellant preferred separate appeals to this Court from his several convictions. All his appeals were dismissed summarily except the present appeal. The present appeal was admitted because although a common ground had been taken in all the appeals that the learned trial Judge having had some previous connection with the case in another capacity, ought not to have presided over the trial, some material in support of that contention was for the first time placed before the Court at the hearing of the application for the admission of the present appeal which came to be heard last.

4. Against the dismissal of his other appeals by this Court, the appellant applied for leave to appeal to the Supreme Court. Leave was not granted. The appellant thereafter applied to the Supreme Court for special leave and so far as our information goes, he made such an application also with respect to the case in which a sentence of seven years' rigorous imprisonment had been passed upon him. Special leave was refused.

5. After the present appeal had been admitted and when the preparation of the paper book had made some progress, the appellant sent an application or rather a letter from jail by which he represented that he was not desirous of prosecuting the appeal further and, therefore, the appeal might be struck out. He was informed inreply that inasmuch as he had a solicitor on record, no personal representation by him could be entertained and that if he desired to make any prayer to the Court, he should do so by means of an application filed through the Solicitor in the ordinary way. An application was thereafter filed and a learned Advocate of this Court was briefed by the appellant to appear in support of the application. The State also was given notice and appeared at the hearing. The prayer in that application was that the appellant might be permitted to withdraw the appeal or it might be struck out, as he did not desire to proceed with the appeal any further. We rejected that application because, in our view, after a criminal appeal had been filed, it became the duty of the! appellate court to hear and determine the appeal on its merits and the appeal could neither be allowed to be withdrawn, or be struck out on the ground that the appellant did not desire to proceed with it.

6. Upon the completion of the paper book the appeal was placed before us for hearing after the usual notices to both the appellant and the State had been given. The State appeared in the appeal through Mr. Gupta Bhaya. None appeared on behalf of the appellant, but his Solicitor was present in court at the commencement of the hearing and wished to place before us a letter which he had received from his client. We allowed him to place the letter Before us and it appeared that the appellant had instructed the Solicitor not to take any further part in the appeal and at the same time had discharged him from his employment. We directed that letter to be kept on the file both for the purposes of our record and for the protection of the Solicitor because, since he had filed an unqualified power of attorney, he might be held responsible for not arranging for the defence of his client at the hearing of the appeal.

7. The hearing then proceeded. It appeared to us that so far as the grounds taken against the learned Judge's charge to the jury were concerned, they had no substance. The learned Judge's directions to the jury were full and eminently fair. Not only all that needed to be said had been said and said as well as it could be said, but the facts had also been marshalled In a manner which could not lend the slightest ground for any contention that any undue or unfair emphasis had been laid on circumstances appearing against the accused. Nor was any of the learned Judge's directions on matters of law erroneous. If, therefore, the appeal fell to be determined only on the grounds directed against the charge delivered to the jury, there was nothing further to consider.

8. There remained, however, the special ground which had induced this Court to admit the appeal. That ground was ground No. 4, but in order that the ground may be appreciated, it is necessary to state a further fact. Before the trial presided over by Sen J., there had been an earlier trial of the appellant by a Special Judge under the provisions of the Bengal Criminal Law Amendment Act (Act XXI of 1849), read with Bengal Ordinance, III of 1940. As a result of the decision of this Court and subsequently of the Supreme Court in another case where a trial had been held by a Special Judge under the same provisions of law, the appellant's trial by a Special Judge had to be held to have been utterly invalid. It was in those circumstances that he was tried a second time and tried at the Criminal Sessions of this Court.

9. To revert now to the Special ground of the appeal. It reads as follows:

'At the time when the said cases were tried before the said learned Special Judge, His Lordship the Hon'ble Mr. Justice S. K. Sen wag then the Legal Remembrancer to the State of West Bengal and the said cases were dealt with and allotted by His Lordship the Hon'ble Mr. Justice S. K. Sen then acting as the Legal Remembrancer as aforesaid for trial after his Lordship the Hon'ble Mr. Justice S. K. Sen had several consultations with the then Home Secretary in respect of these cases. In this connection your petitioner craves leave to refer to the records and the judgment of the said Special Court at the time of the hearing of this application.'

It will be noticed that the only previous connection which the learned Judge was alleged to have had with the case was that it was he who had allotted the case to the Special Judge for trial by him and that in that connection he had had discussions with then Home Secretary.

10. Some further reference to what the ppellant's objection was is to be found in ground No. 11 of his petition of appeal. There it is said that on the 11th of March, 1955, the appellant's Counsel submitted to Sen J., that he should not preside over the trial inasmuch as he had already dealt with the charges made against the appellant 'in the capacity of Legal Remembrancer.' On a reference to the minutes of the trial, it appears that the statement of fact made in ground No. 11 is not wholly accurate. The objection taken by the appellant's Counsel is there minuted in the following words:

'Mr. B. Sen submits his Lordship should not take up this case as he was Legal Remembrancer at the time of allotment of this case. His Lordship overrules the objection.'

11. The actual objection taken in the trial, therefore, was not a general objection that Mr. Sen, as he then was, had been concerned with the case at a previous stage in his capacity as the Legal Remembrancer but only that he had been the Legal Remembrancer at the time of the allotment of the case. The objection thus recorded is almost the same as stated in ground No. 4 and not the somewhat wider objection stated in ground No. 11.

12. Besides the bare allegations contained in the two grounds to which I have Just referred, the records of the appeal do not contain any further material by which the truth or otherwise of the appellant's allegations could be judged or it could be ascertained what the extent of Mr. Sen's previous connection with the case was, if there had been such previous connection at all. We, therefore, asked Mr. Gupta Bhaya, who was appearing for the State, whether he could place before us materials which we thought, were bound to be in the possession of his client and which might throw some light on the real state of affairs, Mr. Gupta Bhaya asked for an adjournment to have a consultation with the present Legal Remembrancer which we readily granted and, at the next hearing he produced certain files which he said had been given to him by the present Legal Remembrancer. We thought that if the State desired to place before us the materials relating to the institution and allotment of this case, such materials should, be produced in a proper manner and that either some competent officer should produce them and give the necessary evidence regarding their authenticity and custody or theyshould be produced as annexures to an affidavit Subsequently, the latter procedure was adopted and at the next hearing of the appeal, the relevant files were produced along with an affidavit of one Sri Kamalapati Mukherjee, described as the Senior Head Assistant of the Judicial Department of the Government of West Bengal. He said in the affidavit that he was producing all the files which were in the custody of the Judicial Department of the Government of West Bengal and that, to the best of his knowledge, there was no other file or document in the Department's custody. It was also stated that the declarant had ascertained from the Home Department that that Department also had in its possession no other file in connection with the present case.

13. The flies produced by the affidavit were three in number, namely, (1) Pile No. J 3 T 5/50--Re: Court for the trial of the Calcutta Commercial

Bank cases, (2) File No. J 13 P/49

_________ Re

9

Prosecution of Sri Sudhindra Nath Dutta and

five others and (3) File No. J 1 S/49

_________ Re

33

Appointment of Judicial Secretary.

14. It appears from the files produced by the State that Mr. Sen assumed charge of his office of Judicial Secretary and Remembrancer for Legal Affairs in the State of West Bengal on 17th of October, 1949. Prior thereto, an application for sanction under Section 196 (2) of the Code of Criminal Procedure had already been made by the Commissioner of Police, Calcutta, in connection with the charges against the appellant. The application was originally addressed to the Judicial Department, but seems to have gone to the Home Department which returned it to the Judicial Department, because it found that it was the Judicial Department which had been addressed but subsequently it was retuned to the Home Department which apparently is the Department which normally deals with applications of this kind. After the Home Department had decided that the sanction prayed for by the Commissioner of Police ought to be accorded, a draft was prepared and it was suggested that the Legislative Department might be requested to have the draft to use the very curious expression in use at the Secretariat ---- 'vetted.' In actual fact, the draft seems to have gone in the first instance not to the Legislative Department but to the Judicial Secretary, Mr. Sen, who made some corrections and recorded a note to the effect that the draft, as revised by him, was approved. It appears from one of the office-notes that attention of the sanctioning authority was drawn to the well-known decision of the Privy Council where it has been said that it was desirable to set out the facts with respect to which sanction was given in the body of the sanction itself. Mr. Sen examined the draft from that point of view and added an expression of opinion in his note that further details of the offences were not called for.

15. Previous to all that, the appellant along with the other accused persons had been produced before the Additional Chief Presidency Magistrate on a police challan. Sanction for his prosecution under Section 120-B, read with Sections 477A and 408 of the Indian, Penal Code was now given. The next step to be taken was to decide who should try the case and to arrange for its trial.

16. It appears that at that stage it was proposed by the Commissioner of Police, Calcutta, who had the support of the Special Public Prosecutor that the trial ought not to be held according to the ordinary procedure of commitment proceedings before a Presidency Magistrate and then a trial at the High Court Sessions, but that it should be held by a Special Court or a Special Judge. It was pointed out that the congestion in the High Court was so serious that if the case was committed to the High Court Sessions, no early disposal of it could be expected. It was also submitted to Government that as the evidence consisted of an enormous number of documents and the issues were mainly issues of accounting, the case was one in which no jury was likely to feel at ease, but, on the other hand, any fury would probably be confused not only by the numerousness of the books and documents but also by the multifarfousness of the links. The representation made by the Commissioner of Police, Calcutta, which was made to the Home Department, was accepted and it was decided to allot the case to a Special Tribunal or a Judge. In the meantime, a second Special Court had beenconstituted under Section 3 of the Ordinance, for the trial of particularly complicated cases under certain sections of the Indian Penal Code or such other classes of cases as the State Government might decide to allot thereto, by a Notification dated the 10th of February 1950. That notification was Issued by the Judicial Department over the signature of Mr. Sen.

17. The Special Court having been constituted, the next step to take was to allot the present case to that court for trial. There appears to be some uncertainty at the Secretariat as to which Department of the Government should make the allotment order and even with respect to the present case there was a considerable exchange of office-notes. It was pointed out that the relevant Notification had sometimes been issued by the Home (Policital) Department and sometimes by the Judicial Department. Ultimately it was suggested that since the Notification, constituting the Special Court, had been issued by the Judicial Department, the Notification allotting the case to a Special Court might also be issued by that department. By a note recorded on I3th of February, 1950, Mr. Sen, the then Legal Remembrancer agreed. He said: 'I agree. Let the Notification allotting the cases be also issued by this department.' A Notification was thereafter issued on 16th of February, 1950 over the signature of Mr. Sen. It appears that before the Notification was Issued Mr. Sen had occasion to consider the draft and suggested in a note recorded by him that the correct addresses of the accused should be obtained in order that they might be incorporated in a Notification and still earlier, he had written to the Commissioner of Police, Calcutta, for a list of the witnesses which, he said, was required 'in connection with the allotment of cases to the Second Special Court.'

18. I have omitted to mention that before the present case or in fact any other case could be allotted to the Second Special Court, a Judge to preside over that Court had to be appointed. A Judge was appointed by a Notification, dated 14th of February, 1950 and that Notification also was issued over the' signature of Mr. Sen.

19. With a Special Court constituted, with a Judge appointed to preside over it and with the case allotted to that Court, it now became necessary to find a place where the Court could hold its sittings. It appears that an extensive search had to be made and various authorities were addressed on different dates. All that correspondence on the side of the Government was by Mr. Sen as the Legal Remembrancer.

20. To sum up now Mr. Sen's connection with the case, what appears from the files placed before us by Mr. Gupta Bhaya is the following:

(1) He settled the draft of the sanction under Section 196 (2) of the Code of Criminal Procedure;

(2) He Issued the Notification by which a Second Special Court was constituted;

(3) The Notification appointing a Judge to preside over the Second Special Court was signed by him;

(4) It was he who signed the Notification, allotting the present case to the Second Special Court, although the decision to allot the case to a Special Court for trial does not appear to have been a decision of his Department, and

(5) Accommodation for the Second Special Court was arranged for by him.

21. The appellant's contention before the learned trial Judge was that in view of the connection which he had previously had with the case, he ought not to preside over the trial. The learned Judge overruled the objection and proceeded to try the appellant. The question before us is whether the trial should be held to have been a mistrial or an invalid trial because of the previous connection which the trial Judge had had with the case to the extent I have already indicated.

22. If the matter is to be judged by strict legal principles and statutory provisions in that behalf, the only relevant provision appears to be Section 556 of the Code of Criminal Procedure. That section, to refer only to its material part, provides that no Judge shall try any case in which he is 'personally interested.' There is an explanation which seeks to limit the meaning of the expression 'personally interested' and provides that In cases where the interest or connection of the Judge or Magistrate is of a particular nature -- which is not the case here -- he shall not be deemed to be personally interested. The explanation, therefore, may be left out of consideration and the whole question is whether Sen J., could be said in the circumstances of this case to have been personally interested in the case.

23. So far as the strict language of the section goes and so far as any guiding principle can be ascertained from the decided cases, it does not seem to me that the effect of Section 558, as applied to the facts of this case, could be to incapacitate the learned Judge as a matter of law for holding the trial. It is true that 'personally interested' does not mean privately interested. A Judge or a Magistrate may have no pecuniary or private interest in a case, he may nevertheless become interested in the success of the prosecution in certain circumstances. Nevertheless, it appears to me -- but I again make the qualification that I am looking at the matter from the point of view of the strict law -- that merely because the trial Judge had previously, as Legal Remembrancer, settled the draft of the order according sanction or merely because he had had some part in allotting the case for the purpose of a previous trial to some other tribunal or merely because he had arranged for the accommodation of that tribunal, it cannot be said that he had become personally interested in the sense of becoming interested in the success of the prosecution. It was held by a Full Bench of this Court that a District Judge might accord sanction forthe trial of a particular person under Section 476 of the Code of Criminal Procedure and might subsequently try the case himself as the Sessions Judge of the district without violating the provisions of Section 487 of the Code of Criminal Procedure; see the case of Queen Empress v. Sarat Chandra Rakhit, ILR 16 Cal 766 (A). Quite recently it was held by the Supreme Court that a Magistrate, sanctioning the prosecution of a person under the provisions of a special law was not debarred by Section 556 of the Code from holding the trial of the accused. See Rameshwar Bhartia v. State of Assam, : 1953CriLJ163 (B). It can hardly be gainsaid that an authority, approached for sanctioning the prosecution and according such sanction, has to apply its mind to the facts of the case as they appear at that stage and has also to form at least an opinion that it did not seem that it would be useless to prosecute the accused because, on the materials, it could not be said that no prosecution possibly succeed. If even a Magistrate whose mind is already committed to the view, that, on the primary facts of the case, as they appear, a prosecution is likely to succeed and ought to be launched is not to be held to be personally interested and debarred from holding file trial, I find It difficult to hold that such concern as the learned trial Judge had had previously with the present case made him personally interested in the case within the meaning of Section 550 of the Code Of Criminal Procedure. According to the Supreme Court, there is a distinction between a passive interest and an active interest and it is only in the latter case that the disqualification mentioned in Section 550 arises. It is also the view of that Court that to give sanction for a prosecution is not to take an active interest therein or evince such Interest. The present case is not even one where Mr. ' Sen had himself given sanction for the prosecution of the appellant and it would appear that in that regard it is a weaker case than the cases decided by the Full Bench of this Court and the Supreme Court to which I have just referred. The concern which he actually had with the case appears to have been more or less of a formal character and, therefore, it cannot be said that he must have formed some opinion, adverse to the appellant or must at least have developed an attitude of mind unfavourable to him by reason of the connection he had with the settlement of the draft of the order of sanction, the constitution of the Special Court, the allotment of the cases to that Court and the procurement of accommodation for the Court's sittings. I would, therefore, hold that it cannot be said that the learned trial Judge was incompetent in law to hold the trial by reason of the previous connection he had with the case or that the trial held by him was in law invalid.

24. It appears to me that a distinction ought to be made between a case where an objection is taken to a particular Judge or Magistrate holding the trial when the trial is about to commence or is proceeding and a case where the validity of the trial is challenged after the trial has already been held. If an objection is taken at the commencement of the trial and in case it is turned down by the trial Judge or the Magistrate, the matter is taken before a superior court, it may be proper to direct that the trial ought not to be held by the Magistrate or the Judge, not because he is incompetent in law to hold the trial but because the appearance of a fair trial may be affected if he tries the accused. But once the trial isheld the position, to my mind, changes. After the trial has been held and has resulted in a conviction, it can be held to have been Invalid only if the trying Magistrate or the trial Judge was debarred by some positive provision of law from holding the trial or if it can be shown that he had exhibited some bias which had actually affected the fair conduct of the proceedings and prejudiced the accused. In the first of the hypothetical cases I have just mentioned, namely, a case where an objection is taken at the commencement of the trial, the case may be transferred from the court of the Magistrate or the Judge, objected to, as a matter of judicial policy. No such question of judicial policy can arise as a practical question after a trial has come to an end and at that stage, the validity or otherwise of the trial already concluded must be determined by reference to the strict principles of law or indications of actual mistrial.

25. In the present case, the appellant has not complained by any of his grounds that the previous connection which the learned trial judge had had with his case had actually created in him a bias which had come to be reflected either in his conduct of the proceedings or in the charge which he delivered to the jury. The whole objection is that having had some previous connection with the case, he ought not for that reason alone, to have presided over the trial and not that having come to hold the trial with some predisposition against the appellant already created in him, he had allowed that predisposition to colour his conduct of the proceedings. It appears to me that such being the case and scope of the objection of the appellant, the ground taken by him must necessarily be judged only by the strict principles of law, namely, by the test of the legal competence of the learned Judge to hold the trial. No question of actual miscarriage of justice or actual prejudice to the accused arises, because none has even been alleged, far less shown.

26. At one stage of his argument, Mr. Gupta Bhaya contended that the trial of the appellant having been a trial by jury, it was wholly immaterial whether the presiding Judge had or had not some previous connection with the case in another capacity. The Judges of fact at a jury trial we were reminded, were the jurors and the trial Judge had little or no concern with the issues of fact. Any bias in him, even if it existed, would; therefore, be innocuous, because in view of the very structure of a jury trial, it could not possibly operate to the prejudice of the accused. I am not prepared to accept that contention of Mr. Gupta Bhaya. It is true that the ultimate judges of fact at a jury trial are the Jurors, but the jurors have to be guided to a correct decision by the presiding judge and he gives such guidance by means of the charge which he delivers to them. If there is some predisposition or some antecedent bias in the mind of the trial Judge, it is not at all impossible that his charge to the jury would take its colour from that predisposition or bias and make the facts as disclosed by the evidence, appear to the jury to be different from what, they might, in the absence of that colour, appear to be. But that is not all. In the case of trials at the High Court Sessions, a verdict of 8 to 3 can be a good and effective verdict only if the trial Judge agrees with it. Only if it is a verdict of 5 to 4 is he not entitled to take any notice of it and only if it is a unanimous verdict is he bound to accept it, whether lie agrees with it or not. The proportion of 6 to 3 is peculiarly vulnerable because unless the Judge adds his assent to the opinion of the majority, the verdict is not binding. If therefore, the presiding Judge has in fact some predisposition in his mind unfavourable to the accused, it is not impossible in the nature of things that in giving his assent, if he does give assent, to a verdict of 'guilty' in the proportion of 6 to 3, he may be influenced consciously or unconsciously by the predisposition of his mind and will be causing a prejudice to the accused, perhaps without even being aware of it. Equally if he disagrees with a verdict of 'not guilty', given by a similar majority, may he be influenced by the predisposition of his mind. I am, therefore, not prepared to accept the proposition of Mr. Gupta Bhaya that the mere fact of the present trial being a jury trial made all questions of personal interest in the trial Judge irrelevant.

27. I have already said that, in my view, the trial of appellant cannot be said to have been invalid as a matter of law simply because it was presided over by Sen, J., who had had with the case previous connection which I have summarised. I have also pointed out that the principle to be followed when an objection is taken at the commencement of a trial cannot be applicable when an objection is taken at the end of it. When an objection is taken at the commencement of the trial on such a ground as was taken in this case, a superior court may feel disposed to give effect to it, not because to allow the trial to be held by the Judge or the Magistrate, objected to would be to allow a person, incompetent in law, to hold it, but because reasonable apprehensions in the mind of the accused that he may not have a fair trial must, at all costs, be allayed. In the present case, the appellant did give expression to such an apprehension at the commencement of the trial. It is true that his objection being overruled, he had possibly no means at that stage of approaching a higher Court for the redress of his grievance and, therefore, the mere fact that he took no further steps can be no ground for thinking that his apprehension, did not persist. Nevertheless, the fact remains that now that the trial has been held and now that we are considering the objection in the appeal, the appellant, whose sole ground of objection was the apprehension in his mind, is no longer pressing that objection before us and no longer saying that what was his apprehension before the trial, has now become a belief because he can point to indications of mistrial in the record of the proceedings. This appears to me to be an additional reason for our holding that having regard to its wholly bare character, no effect to the objection can or ought now to be given by holding the trial to have been invalid.

28. Some reference was made in the course of the argument to the order of the Supreme Court by which the appellant's application for special leave was rejected. If it could be shown that the identical ground had been taken in the application for special leave and that ground had been urged, but the Supreme Court nevertheless declined to grant special leave, we might have had a still further reason for upholding the trial in the present case, because if the objection did not weigh with the Supreme Court as shown by the refusal of Special leave, it could be legitimately taken that it had been overruled as unsubstantial. No copy of the application for special leave could, however, be produced before us and even if an application had been produced, we would not be in a position to know what contentions have actually been urged before the Supreme Court and on what grounds that Court has refused to grant special leave. We shall, therefore, exclude altogether from our consideration the fact that in an appeal from his conviction in another case, where the trial was held in the same circumstances and by the same Judge, the appellant had failed to obtain special leave from the Supreme Court. The reasons which I have given earlier are in my view, sufficient for not holding that the trial in the present case was invalid.

29. While so holding, as I think I must, I, would at the same time take the liberty of saying, with the utmost respect to the learned Judge that, in my view, he would perhaps have exercised his judicial discretion better, if he had acceded to the prayer made to him by the appellant and had not presided over the trial. I must hasten to add and I would do so in the clearest manner I am capable of that the observation I am making does not involve any reflection of any kind at all on the impartiality of the learned Judge or any doubt as to the absolute fairness of the trial held by him. I have had the advantage of going through the records of this appeal twice, once at the stage when the application for the admission of appeal was argued and this time again at the final hearing of the appeal. I can say unhesitatingly that not the slightest indication can be found anywhere in the records of the appeal that there were occasions during the trial when the proceedings were conducted with less than the utmost fairness and with less than complete conformity with the highest principles of judicial procedure. At the same time, I would desire to add that perhaps the most highly-prized asset of any civilised system of jurisprudence is the fairness of the trials held under its provisions. Such fairness does not merely mean fairness in fact but includes the appearance of fairness to all concerned including particularly the accused, to whom no cause is given to form or entertain any reasonable apprehension that he may not be fairly dealt with. I have already pointed out that such previous connection as the learned trial Judge had had with case was more or less of a formal character and did not obviously even acquaint him with the facts of the case, not to speak of creating in him any bias or predisposition. Nevertheless, a layman coming to know that it was the Judge, now trying him, who had himself settled the order sanctioning his prosecution, as the Judicial Secretary of the State, had signed the notification by which a Special Tribunal was constituted for a previous trial on the same charges, as also the notification allotting the case to that Tribunal and had also secured accommodation for its sittings, may be excused if he thinks, particularly with a mind scared by all the terror of a criminal prosecution on serious charges, that probably the Judge is coming to try him with an opinion adverse to him already formed in his mind. The Judicial Secretary is also the Legal Remembrancer and as such the virtual prosecutor in prosecutions by the State and that fact is calculated to add to the apprehension felt by the accused. Such an apprehension ought not to be allowed to remain and the only way in which it can be excluded is by removing the cause for It and that can be done only if the Judge, who has had such previous connection with the case, declines on his own account to try the accused, particularly when an objection is expressly taken before him. I desire to add again that I do not intend to cast the slightest reflection on the impartiality of the learned Judge or his absolute freedom from bias in the conduct of the trial and indeed the appellant himself does not make anyallegation of that kind. A second Session's Court was specially constituted by me for the trial of these complicated cases which had been long awaiting trial and the learned Judge was specially appointed to try them. I am perfectly sure that the learned Judge overruled the objection taken before him, because he was clear in his own mind that there was no preconceived notion or prejudice against the appellant there which would embarrass him in the conduct of the trial by interfering with the - exercise of an impartial judgment and because he considered it important that the trial of these cases ought not to be further delayed. In fact, no deviation from complete fairness occurred. If I am yet making the observations I have made, it is because I consider it necessary to state what the proper Judicial policy should be and to emphasise that what is important to the administration of justice is not only that cases should be fairly tried and justly decided in fact, but also that an appearance of fairness, unclouded by the faintest shadow of reasonable suspicion, should be maintained.

30. For the reasons I have endeavoured to give at some length, this appeal is dismissed with the observations which I have made at the end of this judgment. It remains for me to acknowledge our indebtedness to Mr. Gupta Bhaya for all the assistance which he has given us.

Das Gupta, J.

31. I agree.


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