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In Re: Troylokhanath Biswas and Ram Churn Biswas - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1878)ILR3Cal742
AppellantIn Re: Troylokhanath Biswas and Ram Churn Biswas
inquiry into cause of death - report by magistrate--privileged communication--judicial proceeding--finding--coroner's inquest--criminal procedure code (act x of 1872), sections 127, 133, 135, 296--evidence act (i of 1872), section 124. - .....or to the other. at any rate, i feel sure that if it had been intended that the magistrate should report* judicially either to the sessions judge or to the commissioner, or to government, this would have been stated expressly in the act.7. then mr. ghose says, that although the magistrate is not bound to report he must come to a finding. that also clearly was not the intention of the legislature, because, under section 133, although there is to he a report to the magistrate, which is clearly not a finding, there is no person ordered to come to any finding at all. i can see nothing which gives any support to the argument that if there is not to he a report, there must still be a finding as distinguished from a report. the language of the section does not require a report, nor does it.....

Markby, J.

1. The short facts of the case, so far as it is necessary to state them for the purpose of disposing of the present rule, are, that, on the 10th June last, a man named Ramgotti Biswas was found lying dead at no great distance from the factory of Lokenathpur. Under the circumstances in which he was found, I think that there was no possibility of doubt, or at any rate there was very good reason to suppose, that the man had either committed suicide or had been murdered. It was therefore a proper case for the institution of an inquiry under Section 135 of the Code of Criminal Procedure, and accordingly, as we must take it now, the Magistrate of the division proceeded to hold this inquiry. Those proceedings lasted a considerable time, and ultimately they were communicated to the Magistrate of the district. The final conclusion to which the Magistrate who held this inquiry came was, that the man had committed suicide, and that he had purposely committed suicide under such circumstances as might raise a suspicion that the factory people or some persons connected with the factory had caused his death. Subsequently some proceedings, which arose out of this inquiry, were taken against one of the petitioners now before us, and those proceedings went on appeal before the Sessions Judge of Nuddea. The Sessions Judge of Nuddea acquitted the petitioner, but he desired to see the proceedings taken under Section 135, and he accordingly sent for those proceedings; but the Magistrate of the district in whose hands they wore at that time, thinking that the proceedings under Section 185 were not judicial proceedings at all, declined to send them. The Sessions Judge of Nuddea reported the matter to this Court, and another Bench of this Court, after having heard the Legal Remembrancer on the subject, came to the conclusion that the proceedings taken by Mr. Skrine, the Magistrate who hold the inquiry, were proceedings under Section 135, and that they were judicial proceedings. They did not, however, order the proceedings to be sent to the Sessions Judge of Nuddea, but sent for those proceedings themselves, and sun order was issued that the record of the proceedings under Section 135 should be sent up to this Court. The Magistrate of Nuddea in answer to that order sent up certain papers but he intimated at the same time that he was in possession of a report by Mr. Skrine, and he informed this Court that he did not send that report as that was written by Mr. Skrine as a confidential report to him.

2. In that stage of the proceedings the case was transferred from the Bench which issued the original order to this Bench, and as the matter then stood, the only point for our consideration was whether or no the Magistrate of Nuddea was right in the view which lie took,--viz., that the report of Mr. Skrine did not form part of the proceedings under Section 135. In the meantime, however, before we came to any conclusion upon that, the present application was made, specially requesting that we should send for this report, and that, after obtaining that report, we should quash it.

3. Now a good many questions would have to be considered before granting such an application. There may be some doubt whether Troylokhanath Biswas, the only one of the petitioners who had ever been put upon his trial, having boon acquitted, the petitioners had any locus standi at all. There may be considerable doubt, even putting all other questions out of the way, whether this Court would, at the instance of persons standing in the position of the petitioners, quash a finding under Section 135; and there is still a further objection taken by the Advocate-General, which is really not answered, viz., that as the inquiry under that section is optional, this Court has no power to order fresh proceedings to be taken, and unless fresh proceedings can be taken, there is but little use in our interfering at all. But it is not necessary to go into these questions, for on another ground I think that this application must fail.

4. The reason why, notwithstanding these objections, we thought it desirable without further considering them that this rule should issue, was this: It was absolutely necessary for us in the way the case came before us to consider whether the Magistrate of Nuddea had duly complied with the order of this Court. The proceedings having been sent for, the report was not sent, and I understand the course taken by Mr. Stevens to have been to submit to the decision of this Court, whether or no he was bound to send up that report. I may say in passing that the course so taken by Mr. Stevens shows that he acted with perfect propriety in the matter. But it was necessary to decide the question which he submitted to us quite independently of the present application. For my own part also I strongly desired to have the assistance of the advisers of the Crown in a discussion of this character. The question is of considerable importance, and one which may in some cases be of very serious consequence, whether the result of an inquiry under this section is such that, without the possibility of using any discretion in the matter, the Magistrate is bound to make it public. I therefore thought it desirable to issue a rule in order to bring in the Crown and have the question discussed. Accordingly we issued a rule in order to have the benefit of the argument of counsel for the Crown upon the construction of this section.

5. The matter has now been argued, and we have to determine what is the true construction of this section. But before I enter into that question I wish to say one word as to what I understand to be the object of the petitioners in this case. I may say at once that, if there was the slightest indication that there was an intention of opening up a charge against any individual whatsoever by these proceedings, I would not have been a party for a single moment to any discussion in the matter. I would not by issuing a rule have given the least semblance of encouragement to such proceedings. But I fully understood Mr. Ghose from the first, as he has also represented now, that that is not the object of these proceedings. I understand the real object of these proceedings to be to clear the memory of the deceased man from an imputation which has undoubtedly been cast upon him. Whether we can arrive at that result under the law as it stands is a different matter; but I am bound to say that I consider that the object, if it can be attained by law, is a perfectly legitimate object. No one can doubt that it must be a matter of great pain to persons connected with this unfortunate man that this statement, viz., that he had committed suicide under such circumstances as the Magistrate supposes, should have been made. It may, no doubt, sometimes be the duty of public officers to make statements which are painful to others, but there is nothing objectionable if persons affected by those statements try by any legal means in their power to get rid of those statements; and I go one step further, I think that the relatives of this deceased person were not rash in their inference, when they found a document of this kind printed and published, that it was intended to be put forth as the judicial result of a judicial inquiry, ft commences thus: 'From F.H. Skrine, Esq, Officiating' Joint Magistrate on special duty, to the Magistrate of Nuddea. I have the honour to submit a report embodying the results of my inquiry into the cause of the death of Kamgotti Biswas. Keasonably enough the way in which it struck them was, that this was not merely an opinion of an individual formed upon the best materials that he could get together by any moans in his power, and reported confidentially to his superior officer; but that it was an opinion of a judicial officer formed upon evidence and in a judicial manner. Although they were misled in supposing that it was a document of this nature, I think that they were very reasonably justified in assuming that it was so. I may also say that if this document had been of that character, and one therefore under our control, I should not have hesitated for a moment, if the law would allow me, in setting it aside. I think that it is of the utmost importance to keep a clear distinction between judicial and executive proceedings; and if this report was before me as a judicial proceeding, I should feel bound to say that it was a very unsatisfactory one. I think that it is impossible to read this document without seeing that this is not the result of an inquiry by Mr. Skrine himself, but of Mr. Skrine assisted by a variety of persons of inferior position. That might be a most useful thing for an ulterior object, but would not be an inquiry which ought to go forth to the world as a judicial proceeding by a Magistrate. I think it, therefore, right to say that if this had been a judicial proceeding, I should have treated it very differently from what I am now doing, and I hope that if it he once understood that this is not a judicial proceeding, it will he deprived of very much of its injurious effect.

6. Now with regard to what is the more, immediate subject for us now to consider. I am free to admit that, during the course of the argument, I have had some doubt as to what the intention of the legislature was when introducing this section. I think that it may be fairly argued that prima facie when a Magistrate holds a judicial inquiry and has power to take evidence, we should expect that it was intended that some result should be arrived at. But though that is so at first sight, I think, on further consideration, it is by no means clear, even upon a general view of the Act independently of the exact language of the section itself, that that was the intention of the legislature. The object of these inquiries may be three-fold. The object may be to calm any alarm that had been created in the mind of the public on the occurrence of a violent or unnatural death, and to allay any unfounded suspicion; or the object may be to put in force the law against a particular individual; or it may be merely to gain information to be used by the authorities according to their discretion. Now, looking at the general character of this section and the sections which precede it, I cannot myself see that, merely for the purpose of putting the law in force against any particular individual, there was any necessity for the section at all. As far as I can see, the powers of a Magistrate under the law, if he suspects any person of having committed any particular offence, are ample without having any recourse to this section. Therefore the inquiry, or inquest as it is sometimes called, must be to inform either the officers of Government or the public at large as to what has really occurred or is suspected to have occurred. Now I am by no means prepared to say that, as a matter of policy, more would be gained than lost by the publication of the result of the inquiry. We may no, doubt imagine cases in which it is very desirable that the result should be published, but we may also imagine cases in which it would he most injurious, even to private individuals, if the result were published. I only say this to show that I approach the consideration of the language of this section without being able to discern any strong reasons of policy in favour of either one construction or the other; and, therefore, though we may look to the policy of an Act as one of our guides in its construction, there is really nothing here to indicate what that policy is. The language of the section is this: The nearest Magistrate duly authorized may hold an inquiry into the cause of any such death, either instead of or in addition to the investigation held by the police-officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence, although no specific charge has been made against any person. The Magistrate holding such an inquiry shall record the evidence taken upon it in any of the manners hereinafter prescribed according to the circumstances of the case.' Now Mr. Ghose argued that the language of the section at once pointed to the provisions of Section 133, and that the inquiry hold by the Magistrate was to he either supplemental to, or, if he thought proper, substituted for the inquiry held by a police-officer under Section 133, and he quite rightly indicated to us that under Section 133 a report is required, for that section says, that the police-officer shall make an investigation and report the apparent cause of death, and so on. That argument which struck mo at first seems to me to fail, because, whilst the police-officer necessarily has some superior to whom he can report, it is by no means always so with the Magistrate. The Magistrate of the district holding an inquiry under Section 135 has, under the Code of Criminal Procedure no executive superior to whom he can report at all. It is not impossible for him to report to the Judge or to the Commissioner, or to Government; but I may say that it would he entirely out of the ordinary course of proceeding in this country if he were, judicially and not executively, to make a report either to one or to the other. At any rate, I feel sure that if it had been intended that the Magistrate should report* judicially either to the Sessions Judge or to the Commissioner, or to Government, this would have been stated expressly in the Act.

7. Then Mr. Ghose says, that although the Magistrate is not bound to report he must come to a finding. That also clearly was not the intention of the Legislature, because, under Section 133, although there is to he a report to the Magistrate, which is clearly not a finding, there is no person ordered to come to any finding at all. I can see nothing which gives any support to the argument that if there is not to he a report, there must still be a finding as distinguished from a report. The language of the section does not require a report, nor does it require a finding; and it seems to me that if we were to say that, under this section, the Magistrate who holds an enquiry is bound to make a report or come to a finding, we should he making an unjustifiable addition to the language of the Legislature.

8. Some comparison has been made between a Coroner's inquiry and the inquiry under Section 135. As far as I can see, the only semblance of any basis for that comparison arises out of the word 'inquest,' which is used, not in Section 135, but in the earlier sections, where the Legislature apportions the various duties of Magistrates. I think that we ought not to introduce an analogy which does not really exist. The proceedings of a Coroner are in their nature regular criminal proceedings having a distinct result, and a result upon which, if it affects any particular person at all, ulterior proceedings can be taken against that person. I think also I am speaking correctly when I say that even in some leases where no particular person was affected, still the result of the verdict of a Coroner's jury might be to effect a forfeiture of property to the Crown. No doubt some of these results do not exist now and have fallen into disuse; but we must, I think, remember what the Coroner's inquest, originally was when we are asked to consider why it results in a finding.

9. On the whole, therefore, I think that this rule ought to be discharged upon the ground that the report sent up by Mr. Skrine to the Magistrate of Nuddea was not part of a judicial proceeding.

Prinsep, J.

10. I altogether agree in the view of the law in Section 135 of the Code of Criminal Procedure which has just been laid down by Mr. Justice Markby, and in holding that the report submitted by Mr. Skrine, the Magistrate of the Division of Chooadanga, to the District Magistrate, Mr. Stevens, is no part of any judicial proceedings held under that section. It seems to me quite clear that the form of an inquiry under Section 135 is directed more to elucidate the facts of a violent or unnatural death before there is any reasonable suspicion of the commission of any offence, and that when such grounds do exist, the inquiry comes under another portion of the Code.

11. As regards the form in which the present application is made to us, I must say that I have always entertained serious doubts as to the locus standi of the petitioners, and it was, as has already been stated in the judgment which has been just delivered, on account of the importance of deciding the position of the Magistrate with regard to this particular report and the proceedings taken by him that led me to agree in the course taken.

12. Whatever grounds the relations of the deceased may have to complain of the terms of the report in the form in which they produce it before us and the aspersions that it may cast on the memory of the deceased Ramgotti Biswas, I think that the observation of the learned Advocate-General in the course of his argument completely disposes of any objection that they may take to the terms in which that report mentions Ramgotti. That report was never published, until through some injudicious agitation of the friends or advisers of the petitioners a pressure was brought to bear on the Government, which induced the latter to consent to the publication of that report in the expurgated form in which it has been laid before us. Had this course not been taken on behalf of the petitioners, that report would never have been published or been made known except to the officials immediately concerned. We have no power to quash that report as we are asked to do, nor has it been suggested that any good result would ensue in the ends of justice by any re-opening of the enquiry, since it is admitted that nothing is forthcoming or likely to be elicited which would throw any fresh light on the circumstances attending the death of Ramgotti Biswas.

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