SHAUKAT ALI KHAN Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This petition has arisen from my order dated the 1st May, 1958, in Criminal Revision No. 835 of 1957.

(2.) To appreciate the points agitated, it is necessary to set out the relevant facts. A first information report under section 408, Indian Penal Code, was lodged at the instance of Fida Ahmed, Private Secretary to the Nawab Iftikhar Ali Khan of Malerkotla, alleging commission of criminal breach of trust by the accused (Shaukat Ali Khan) who was at one time in the service of the Nawab. During the proceedings in the trial Court (Magistrate 1st Class Malerkotla) the prosecution wanted to examine Nawab Iftikhar Ali Khan as a witness and, it appears, at the instance of the counsel of the State a letter of request was issued to the Nawab for appearing in Court on or about 3rd October, 1956. An application was moved on behalf of the Nawab representing that he was immune from the ordinary process of the Court, exemption from appearance in Court accordingly was sought and it was prayed that he should be examined on commission. The prayer was allowed and the Nawab was on 8th October, 1956, ordered to be examined on the commission. The said order directing examination on commission was attacked by the accused in revision before Session Judge, Barnala. The learned Sessions Judge, while affirming the order of the trail Magistrate, dismissed the revision. From the order of the learned Sessions Judge, the accused came up to the High Court in Criminal Revision No. 835 of 1957. Nawab Iftikhar Ali Khan was not impleaded as a party either before the learned Sessions Judge or in the High Court. On the grounds that no immunity attached to the Nawab, which was conceded by the counsel for the State and that provisions of section 503 of the Code of Criminal Procedure did not protect him, the revision was allowed and the order of the learned Magistrate was set aside. In the result, the Nawab was directed to appear in Court for giving evidence as a prosecution witness.

(3.) The learned appearing for the applicant Nawab Iftikhar Ali Khan in the present proceedings raised two-fold contentions, namely, that the order of this Court dated the 1st May, 1958, in Criminal Revision No. 835 of 1957 was an ex parte order as respects the Nawab, for he was never before this Court, nor had he been made a party to the proceedings; and since the order affected his privileges vitally and was prejudicial to his rights and interests, the order be recalled, re-opened and the applicant be heard on merits. It was otherwise urged that complete immunity attached to the Nawab, in view of the convenient executed at the time Malerkotla integrated into Patiala and East Punjab States Union, and the learned counsel for the State appearing in Criminal Revision No. 835 of 1957 had not properly defended the interest of the Nawab, having erroneously conceded the point. Apart from the question of immunity, it was contended that provisions of section 503 of the Code of Criminal Procedure also afforded protection.