BHOLARAM DALMIA Vs. STATE

JUDGEMENT

(1.) This Rule is directed against an order directing issue of warrant of arrest against the five petitioners under Sections 120B/302, Penal Code. On 11-2-1952 one Biswanath Dhanuka met his death when in the house No. 196-C, Chittaranjan Avenue. In a flat in that house the 4 Dalmia petitioners lived. With them also lived a young girl named Sarada. Bholaram. Dalmia & Rabishankar Dalmia are her brothers, Ramprosad Dalmia is her uncle and Shyamsundar Dalmia her cousin. Biswanath Dhanuka who was a frequent visitor to another flat in that building fell in love with Sarada; love letters were exchanged, but when her marriage with another young man was arranged Biswanath Dhanuka took exception to it. The marriage was fixed for the 18th of February. On the llth of February Biswanath came to this house. At 6 P. M. or shortly thereafter he was discovered lying dead with his throat cut with a blood-stained knife by the body. The body was found on the first floor landing of the staircase. After prolonged investigation the police sent up a report stating that the materials available were not sufficient for sending up a charge-sheet against any person. Thereafter Biswanath's father filed an application in the court of the Additional Chief Presidency Magistrate alleging among other things that the police had proceeded under a fundamental misconception that it was a case of suicide, that the circumstantial evidence along with the oral evidence as disclosed in the investigation was strong enough to lead to the conclusion that the accused Bholaram Dalmia and others, seven in number, were involved in the offence, that the police completely failed to appreciate the evidence and that it was entirely wrong to say that there was not sufficient evidence to convict the accused. The application ended with the prayer that the Additional Chief Presidency Magistrate should refuse to accept the police report and should order a judicial enquiry into the matter or take "such step or steps for bringing the delinquents to book". Thereafter the learned Additional Chief Presidency Magistrate Mr. K. K. Das Gupta directed Mr. K. C. Sen to hold a judicial enquiry into the complaint and report by 18-8-1952. Before Mr. Sen the complainant wanted to examine two witnesses only. These two were examined. After consideration of their evidence and "the police papers, records in Coroner's Court, post-mortem examination report and the replies of Dr. Kabir Hossain to certain queries made by the police," the learned Magistrate came to the conclusion that this was undoubtedly a case of murder but there was

(2.) This order indicates that in coming to the conclusion that process should be issued, the learned Magistrate relied on police papers, the report of the judicial enquiry held by Mr. Sen and the comments thereon by Mr. K. K. Das Gupta, the proceedings before the Coroner's court and the post-mortem examination report.

(3.) The question arises whether the learned Magistrate could in law rely on papers which were not on the records of the case. Neither the proceedings before the Coroner nor the police papers formed part of the Court's record. The issue of process under Section 204, Criminal P. C. or dismissal under Section 203 is clearly a matter for judicial determination. In my judgment, no Magistrate is entitled to bring to bear on the judicial determination of such matters, information which comes to his knowledge from other sources than in court in accordance with law. Say for instance, could a Magistrate issue process or dismiss a complaint on some confidential information received by him? I am clearly of opinion that he could not. It has again and again been said that it is necessary not only that justice should be done but that justice should be seen to be done. If Magistrates were to base conclusions on materials not properly before the Court, there would be great, scope for impartial people thinking that justice has not been done.