1. Notice was given to the opposite party who is the Judicial Secretary and Legal Remembrancer of the Government of the State of West Bengal to show cause why he should not be found guilty of contempt of Court and punished. This Court had been moved to issue such a Rule on the ground that the Judicial Secretary and Legal Remembrancer in his official capacity had written a letter dated 7th July 1950, to the Additional District Magistrate of 24 Parganas which, it was said, was a deliberate attempt to interfere with the due course of justice. The learned Advocate-General has appeared on behalf of the opposite party and Mr. A. K.. Basu has appeared on behalf of the petitioners who moved the Court.
2. The petitioners Ramlal Rajghoria and Gorak Singh have been charged with the offence of murder. It is said that they murdered one Subodh Kumar Sarkar. It seems that there was a prolonged enquiry into the causes of the death of this man, Subodh Kumar Sarkar and at first the authorities declined to take cognizance of a complaint made by the deceased man's widow. Later, apparently cognizance was taken and the matter came before the Sub-Divisional Officer, Alipore, in his judicial capacity to conduct the preliminary enquiry.
3. It seems that the complainant, the widow of the deceased man, was apprehensive that the usual prosecuting authorities would not prosecute this case with vigour and an application was made on her behalf to the Court under Section 495, Criminal P. C., for permission for the prosecution to be carried on by herself through an advocate. The learned Sub-Divisional Officer considered this application on its merits and rejected it. He directed that the prosecution should be continued by the Court Inspector, who is of course the person who normally carries on prosecution in respect of serious offence on behalf of the State.
4. It appears that the complainant, the widow of the deceased man, was dissatisfied with this order and submitted a representation to Government. I should have thought that the Government would have realised that they could take no action because there was a judicial order made by the Sub-Divisional Officer and until that order was varied or reversed by a superior criminal Court the order would have to be carried out. The Judicial Secretary and Legal Remembrancer however took action as a result of this representation made by the widow and on 7th July he wrote the following letter to Shri Manindra Kumar Sen, Additional District Magistrate, Alipore, who was of course the immediate superior of the Sub-Divisional Officer who was conducting the judicial enquiry in respect of this murder charge. The letter which the Judicial Secretary wrote is the subject-matter of this petition and it will be convenient to set out the letter in its entirety. It reads as follows : 'Dear Sj. Sen.
In the texmaco Firing Case against the Manager Ramlal Rajghoria and the Durwan Gorakh Singh pending before the S.D.O., Alipore the complainant has submitted a representation against the order of the S.D.O. directing a public prosecutor or a Court Inspector to take charge of the case. As the Government are not at present interested in the prosecution and the prosecution is being carried at the instance of a private party, Government desire that no Public Prosecutor or Court Inspector should appear at this stage and that if one has already appeared under the order of the S.D.O. he should be directed to retire. I am directed to request you that the S.D.O. and the Public Prosecutor or Court Inspector, if any appearing in the case, may be informed accordingly.'
5. On the original letter which is now before the Court the following endorsements appear 'Show S.D.O. (s) at once for compliance. C. I. to note also.' This endorsement is initialled by the Additional District Magistrate and dated 7th July 1950. There is also an endorsement signed by the Sub-Divisional Officer, dated 7th July. That is in these terms; 'Seen. Show Court Inspector at once and bring it back to me.' There is a further endorsement : 'Seen' which is signed by the Court Inspector.
6. In the petition upon which this Rule was issued, it was suggested that this letter amounted to a contempt of Court because it interfered or tended to interfere with the due course of or the administration of justice. It was suggested that by this letter the Sub-Divisional Officer was instructed by the opposite party to take and course contrary to that ordered by him earlier in a judgment which he had delivered.
7. As I have said the letter was not addressed to the Sub-Divisional Officer who was hearing the case, but to the Additional District Magistrate. The Judicial Secretary could of course express his views to the Additional District Magistrate without committing contempt of Court, but unfortunately the Additional District Magistrate to whom the letter was addressed was directed to inform the Sub-Divisional Officer of the views of Government and the only reason for asking the Additional District Magistrate to inform the Sub-Divisional Officer was to warn him that Government were not prosecuting and that the Court Inspector should there-fore not be asked to conduct the prosecution and be permitted to withdraw or retire.
8. Prosecution for serious offences are normally carried on by officers of the State, but the Magistrate conducting an enquiry may grant permission to some other party to conduct the prosecution. The matter is dealt with in Section 495, Criminal P. C. which is in these terms:
'(1) Any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police below the rank to be prescribed by the State Government in this behalf but no person, other than the Advocate General, Standing Counsel, Government Solicitor, Public Prosecutor or other officer generally or specially empowered by the State Government in this behalf, shall be entitled to do so without such permission.
(2) Any such officer shall have the like power of withdrawing from the prosecution as is provided by Section 494, and the provisions of that section shall apply to any withdrawal by such officer.
(3) Any person conducting the prosecution may do so personally or by a pleader.
(4) Any officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted.'
9. As I have said earlier, the deceased man's widow upon whose complaint the enquiry proceedings were based applied under this section for permission to conduct the prosecution. The Sub-Divisional Magistrate considered that application on its merits and for reasons, which I need not now discuss, rejected the application. He further directed the Court Inspector who is normally planed in charge of prosecutions to appear on behalf of the prosecution and to conduct the case. It was an order made by the Sub Divisional Officer in his judicial capacity and that being so, it was an order that could only be challenged by proceeding by way of revision. In fact a petition for revision of this order has already been filed in this Court.
10. It seems quite clear that this order directing the Court Inspector to conduct the prosecution was not viewed with favour by the Government and therefore the Judicial Secretary wrote the letter complained of.
11. There can be no doubt that the State Government have control over their officers who prosecute offences and the Judicial Secretary could undoubtedly have instructed the Court Inspector to apply to withdraw from these proceedings. He could not direct the Court Inspector to withdraw because of the provisions of Section 494, Criminal P. C. That section is in these terms :
'Any public prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases 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,
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(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.'
12. It will be remembered that Sub-section (2) of Section 495 makes the provisions of Section 494 applicable to cases falling within Section 495. The Court Inspector was directed by the Sub-Divisional Magistrate under Section 495 to appear for and conduct the prosecution. That being so, he could only retire from the case by obtaining the consent or leave of the Court under Section 494 of the Code.
13. The Judicial Secretary could, as I have said, have instructed the Court Inspector to apply for leave to withdraw or retire. But what he did was to tell the Additional District Magistrate to order the Court Inspector to retire and to inform the Sub-Divisional Officer accordingly. In other words, the Additional District Magistrate was told to inform the Sub-Divisional Officer that in the view of the State Government the Court Inspector should withdraw from the case. In effect it was an intimation to the Sub-Divisional Officer that he should permit the Court Inspector to withdraw as the State Government did not wish to be concerned in the prosecution or in the words of the Judicial Secretary the Government were not at that moment interested in the prosecution.
14. In my view, this latter tended to interfere with the due course of justice and would undoubtedly have interfered with the due course of justice unless steps had been taken to obtain this Rule. The letter had been forwarded by the Additional District Magistrate to the Sub-Divisional Officer for compliance and I have not the slightest doubt that the Judicial Secretary intended that this letter should be forwarded immediately for compliance. In other words, the Judicial Secretary intended that the Sub-Divisional Officer should at the instance of Government permit the Court Inspector to withdraw or retire from the case and it would require a very strong Sub-Divisional Officer to act contrary to the suggestions in that letter. It would be extremely difficult for the Sub-Divisional Officer to refuse to allow the Court Inspector to withdraw from the case once he had seen this letter which was sent to the Additional District Magistrate and which undoubtedly the Sub-Divisional Officer was intended to see. To tell the Sub-Divisional Officer that he must allow the Court Inspector to withdraw or retire from the case is in my judgment a serious interference with the due course of justice. An application could have been made under Section 494, Criminal P. C., for permission to retire and the Sub-Divisional Officer would have had to consider such an application on its merits. Had such an application been made, as it would undoubtedly have been made by the Court Inspector, after this letter was written the Sub-Divisional Officer would have had no alternative but to accede to that request. Section 494, Criminal P. C., contemplates a Magistrate considering such an application on its merits. But an attempt was undoubtedly made in this case to influence the Sub-Divisional Officer before the application was made to him. In my judgment that is a serious contempt of Court as the letter undoubtedly tended seriously to interfere with the due course of justice. It was for the Sub-Divisional Officer and for the Sub-Divisional Officer only to decide whether he should permit the Court Inspector whom he had directed to appear to withdraw from the case. The matter was a judicial matter and any attempt to interfere with the learned Magistrate's independence and discretion is undoubtedly an interference with the due course of justice. That being so, we must hold that addressing this letter with the intention that the recipient should show it to the Sub-Divisional Officer amounted to contempt of Court and, accordingly, I would hold the opposite party guilty of contempt of Court.
15. The Judicial Secretary and Legal Remembrancer of the State Government has filed an affidavit in which he admits that the deceased man's widow had represented to him that the prosecution of the petitioners would not be conducted properly by the State. Having regard to that view, the Judicial Secretary says that he was of opinion that as the prosecution had been started by a private party it should have been left to that party to conduct the prosecution and the letter now complained of was written to give effect to that intention. In short, the Judicial Secretary frankly admits that he intended to influence the Sub-Divisional Officer to permit the widow to carry on this prosecution contrary to the Judicial order already made by the Sub-Divisional Officer. The Judicial Secretary then goes on to say that he thought the order of the Sub-Divisional Officer appointing a Public Prosecutor for the case was purely an executive order. But surely that is a grave mistake. The Sub-Divisional Officer had made that order not in his capacity as an executive Magistrate, but in his capacity as a judicial officer conducting a preliminary enquiry required by the Code in a murder case. Judicial Officers sitting in Court do not normally make executive orders. An order such as this, I think, was clearly an order made by the Magistrate in his judicial capacity and if the Judicial Secretary or the State Government had any com-plaint to make, they could have brought that order to the notice of this Court by way of revision.
16. The Judicial Secretary then says that if this Court thinks the letter was not a proper one, he was prepared to withdraw it and express his regret for having written it. There is no apology in the affidavit, but the learned Advocate-General who has appeared on behalf of the opposite party has rendered an apology on his behalf. It is not a question whether or not the Judicial Secretary is prepared to withdraw this letter, if we think that it is a letter that should not have been written. The letter should never have been written and this is a case where, 1 think, a franker apology should have been made in the affidavit. However, a frank and full apology was made by the Advocate-General on behalf of the Judicial Secretary.
17. I do not think that the Judicial Secretary intended to do anything more than to give effect to the representation which the deceased man's widow had made to him. I do not think that he ever intended to stifle this prosecution because if I had come to that conclusion I should have taken a very serious view of the matter and a far more serious view than I take of it now. What the Judicial Secretary intended was that the widow should be permitted to conduct the prosecution through an advocate as she felt that justice would not be done to the case if the prosecution remained in the hands of the officers of the State. I can well understand that point of view, but unfortunately the Judicial Secretary took a course which cannot be justified. As there was no motive to stifle this prosecution, we can take a far less serious view of the offence. Having regard to the attitude taken by the Judicial Secretary in frankly confessing that he was at fault, I think the ends of justice would be met by finding the opposite party guilty of contempt of Court and directing that he pay the costs of these proceedings, which we assess at Rs. 200.
18. Let the affidavit filed in Court to day be kept on the record.