D. C. SAMUEL Vs. EMPEROR

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The applicant, D.C. Samuel, is being prosecuted in the Court of Mr. Bangale, Magistrate, 1st Class, Chhindwara, on charges under Sections 451 and 323, I.P.C., for having, while drunk, trespassed into the outhouse of Mr. Nehru, District Magistrate of Chhindwara, and assaulted his ayah, Mt. Jessie, at about 10-30 p. m. on 22nd June 1933. Even in the challan Mt. Jessie is described as the "ashna" (mistress) of the applicant, and though the woman as P.W. 2 at first denied this as an imputation, she had to admit facts which clearly show that she was in the keeping of the applicant for the last 12 years during which period there were occasional quarrels between them when the applicant was under the influence of liquor. The applicant admitted that he had gone to the outhouse in question to meet his mistress at her invitation as usual, that both of them drank liquor provided by Mt. Jessie and that she having raised a false alarm that he was beating her he was arrested. Although the challan was put up under Section 452, I.P.C., the trying Magistrate charged the applicant under Sections 451 and 323, I.P.C., only. After the charge was framed the applicant put in a list of 18 defence witnesses, including the Deputy Commissioner, (Mr. Nehru), the District Superintendent of Police, Mr. and Mrs. Tikku and Mr. Maru, Jailor of Amraoti. The names of Mr. Maru "and Mrs. Tikku were however struck out by Rai Bahadur Mathuraprasad, who defended the accused, before the following order was recorded on the back of the application by the trying Magistrate on 7th July 1933: " All D. Ws. except Mt. Jessie herself be summoned for 15th July 1933. " Subsequently on a date, not recorded, the trying Magistrate scribbled the following order underneath the aforesaid endorsement: On reconsideration I find that I will not issue summons to D.C., D.S.P. and Mr. Tikku just at present before heating other evidence. Counsel for the accused be informed.

(2.) THE applicant applied to this Court for the transfer of his case from the file of Mr. Bangale to some other Court on certain grounds which after perusing the record, I found to be too vague. The applicant then, with permission, put in a supplementary application definitely alleging that as Mr. Bangale had modified his previous order of summoning the defence witnesses, unknown to him and his counsel, after some correspondence between himself and Mr. Nehru, the District Magistrate, he was afraid that he will not have a fair trial in his Court specially for the following reasons: The trying Magistrate is being thus influenced by Mr. Nehru and from this action of the trying Magistrate changing the order the applicant is afraid that he will not get fair justice at the hands of Mr. Bangale, The action of the District Magistrate in making some correspondence with the trying Judge, Mr. Bangale, makes the applicant feel that he is likely to influence any Magistrate subordinate to him, as he is taking the (sic) personal interest in this case. The applicant is also afraid that the District Magistrate has made up his mind to secure conviction of the accused applicant, because he has, contrary to the wishes of the applicant, sent Mt. Jessie (applicant's kept mistress) to Gwalior to work as ayah in the house of his mother-in-law.

(3.) IN his explanation Mr. Bangale the trying Magistrate, states that on receipt of a note from the District Magistrate drawing his attention to Section 257, Criminal P.C., he reconsidered the matter and passed, on 10th July 1933, the second modifying order, and that he had returned the "note" to the District Magistrate ' along with his reply. He vehemently protests against the suggestion that he could be influenced by anybody. The learned District Magistrate furnished the following lengthy explanation in defence of his own and, his subordinate Magistrate's action in the matter: 2. The statement made by the applicant that the District Magistrate is trying to influence or has influenced the trying Court is an unmitigated lie. I have seen the record for the first time today and have never spoken or written to the trying Court about the merits of the case. The only occasion on which I have shown any 'interest' In this case was about two and half months ago when I heard that the trying Court was issuing summons to some respectable people-including myself to appear as witnesses for the accused. My Information was that the accused was a vicious character, a drunkard and woman-beater; and as it was perfectly obvious that I at least could not give any relevant evidence in the case, I presumed that the object of his counsel, Mr. Mathura Prasad, was merely to cause annoyance and vexation to us and delay the disposal of the case. On seeing the record now I find that my presumption was not incorrect, for it appears that originally it was intended to summon a respectable lady (the wife of a railway officer)' too to give evidence in favour of this alleged drunkard and woman-beater. However that is another matter. On receiving a notice from the trying Court, I asked it to consider, with reference to Section 257, Criminal P.C.,. whether this was not a case of causing vexation and annoyance to respectable people by causing them to give evidence on points which could only be remotely relevant in favour of a man of this sort. I did so both in my capacity of District Magistrate whose duty it is to see inter alia that subordinate Courts exercise their discretion properly under Section 257, Criminal P.C., and as a prospective witness who is fully entitled to make a representation of this nature to the trying Court, The trying Court wrote back to say that on reconsidering the matter fully it had decided not to issue summons to myself and. one or two others until it had heard the other-evidence. If it did not record its reasons for suspending the issue of summons, it was probably because its orders on the point were not final. My memo and the Court's reply are no longer available as the matter seemed to me of insufficient importance to justify their retention, and I remember to have torn up the paper and thrown it into the w. p. b. over two months ago. 3. As I have said above, this is the only occasion on which I have shown an "interest" in this case. I do not think it can be claimed this 'interest' was unjustified or irregular, and I repudiate the suggestion that it has caused the applicant to apprehend that he will not get justice in Mr. Bangale's Court. As a matter of principle I strongly recommend that his application may be dismissed, for it seems to me that the administration of justice would be impossible if an accused is allowed a transfer merely because the District Magistrate (both as District Magistrate and as prospective witness) draws the attention of the trying Court to a provision' of: the law which has been overlooked and the latter thereupon, on fuller consideration of the law suspends its order. If there was any irregularity committed by, the, trying Court in not recording it's reasons, this was at best a minor irregularity and has now been rectified. I recommend further that, if the case is remanded for further inquiry to the trying Court, its interim order suspending the issue of summons to us may be allowed to stand, for there is no relevant point on which at least I can give evidence and the object is merely to cause vexation to us. There is an additional reason--though perhaps of an extra-judicial nature--which makes me feel that this application should be rejected. The last two sentences of para. 3 of the application are of course an unmitigated falsehood. Mt. Jessie has lost several jobs, it appears from her evidence, on account of the misbehaviour of the applicant, and she-would have lost her present one too immediately after the incident, but she begged the lady who had engaged her to give her a chance to rebuild her existence and take her away from her alleged oppressor, and the lady out of pity took her with her. The applicant's object apparently is to get the woman back by securing a de novo trial which will necessitate her appearance in Court again as a witness. I see no other reason (apart from causing vexation and delay) which could have led him to file this application. 4. The learned Government Advocate also endeavoured to oppose the application. The learned District Magistrate seems indeed to have got very queer notions of the powers he possesses to correct the errors of the Magistrates subordinate to him. If he had carefully read even the bare provisions of Sections 435 and 438, Criminal P.C.--which only come into play in the present case--it should have been apparent to him that he had no power to issue what he styles as a "memo" asking the trying Magistrate to consider, with reference to Section 257, Criminal P.C., whether this was not a case of causing vexation or annoyance to respectable people by causing them to give evidence on points which could only be remotely relevant in favour of a man of this sort.