HATEMALI JAMADAR Vs. EMPEROR

JUDGEMENT

(1.) The Rule in Criminal Miscellaneous Case No. 251 of 1943, and the connected rules in Criminal Miscellaneous Cases Nos. 285, 286, 287 atnd 288 of 1943, were issued at the instance of the accused upon the District Magistrate of Bakarganj to show cause why the ease pending against the petitioners should not be transferred from the Court of Mr. S.K. Roy, a Magistrate of the First Class at Barisal, to some other Court. It appears that the petitioner in Criminal Miscellaneous Case no. 251 of 1943, Khan Sahib Hatemali Jamadar, is the Chairman of the Matberia Debt Settlement Board within the Pirojpur Sub-Division of the Bakargang District. A report being made that there had been misappropriation in connexion with court- fees in the Debt Settlement Board at Matberia an investigation was ordered and ultimately a charge-sheet was submitted against Khan Sahib Hatemali Jamadar and the other petitioners. After the charge-sheet was submitted the Circle Inspector reported that the accused persons are influential persons and included a local member of the Legislative Assembly the present accused and recommended that the case be transferred from Pirojpur Sub-Division to the District head quarters at Barisal. The District Magistrate without hearing any of the accused persons passed an Order transferring the case from Pirojpur to the file of Mr. S.K. Roy, a Magistrate of the First Class at Barisal. Mr. S.K. Roy is a Munsif Magistrate taking criminal cases at Barisal and it was for this reason that Mr. Palmer, the District Magistrate, selected him to try the case. After the charge-sheet was received the Magistrate decided to split the cases up into three different cases, and 9 July was fixed as the first date of hearing. On that date an application for an adjournment was filed on behalf of Khan Sahib Hatemali Jamadar on the ground that this accused had fallen ill in Calcutta where he had gone to attend the Legislative Assembly. The Magistrate adjourned the case until the following day but observed that he had to be satisfied with regard to the fact of illness and warned the accused that serious notice would be taken of his absence if the plea of sudden illness put forward as a ground of adjournment were not substantiated by a proper medical certificate. On the following day apparently in consequence of a statement made to the Magistrate, the Magistrate directed that a letter be written to the Secretary, Bengal Legislative Assembly, to ascertain whether Khan Sahib Hatemali Jamadar had attended the sittings of the Assembly on 8th, 9 and 10 July.

(2.) On 5 August 1943, to which date the hearing of the case was adjourned Khan Sahib Hatemali Jamadar appeared before the Magistrate and produced a medical certificate. At the same time a letter from the Secretary to the Legislative Assembly was read in which it was stated that this accused attended the sittings of the Assembly on 8 and 9 July. In view of this statement the Magistrate directed Khan Sahib Hatemali Jamadar to explain how he could attend the Assembly sittings in view of the medical certificate. On 6 August, the accused filed a petition explaining the circumstances. The explanation was accepted but the Magistrate observed that a serious view will be taken if in future the case has to be adjourned owing to the absence of the accused away at other places. Thereafter the trial proceeded. Khan Sahib Hatemali Jamadar moved this Court on 20 September 1943, for a Rule on the ground that the District Magistrate had no justification for transferring the case to the Barisal Head. Quarters and further that Mr. 8. K. Roy had shown prejudice in refusing to accept the medical certificate of the petitioner, when application was made for an ajournment. The other rules were obtained on 8 November 1948. In reply to the Rule the District Magistrate submitted an explanation. He observed (inter alia) as follows: As the principal accused was a prominent public man, well-known to the Executive Officers in Piroj-pur, I felt that the case should be transferred to Barisal and I selected Mr. S.K. Eoy to try the case as he is a Munsif (that is to say, a member of the Judicial Service and not the Executive) who is temporarily doing magisterial work. I felt that he would be entirely free from any suspicion of Executive influence whether on behalf of the police or on behalf of the accused. Since the commencement of this case I have received numerous letters from the Co-operative Credit and Rural Indebtedness Department of the Government of Bengal, suggesting that the case should either be withdrawn or postponed. I have refused to comply with any of these requests. The letters and telegrams are in my possession and can be produced for the inspection of the High Court if desired. From these letters and telegrams I have formed the impression that the accused is making use of his influence as an M.L.A. to attempt to have the prosecution stifled.

(3.) In view of this statement a letter was written to the District Magistrate directing him to forward to this Court all the letters and telegrams which he had received from the Co- operative Credit and Rural Indebtedness Department of the Government of Bengal suggesting that the case should either be withdrawn or postponed. Accordingly, a bundle of letters and telegrams were forwarded to this Court. On receipt of these letters and telegrams we requested the standing counsel to appear on behalf of the Government and gave him and the advocate for the petitioner copies of the correspondence. Since the receipt of these letters, Mr. Palmer has been transferred from Bakarganj to another district. (After setting out the letters his Lordship proceeded.) Mr. Hill's letters clearly created the impression in Mr. Palmer's mind that an attempt was being made to hold up or stop the prosecution. The letters certainly are liable to that interpretation. The standing counsel, however, contends that that was not the Government's intention; that the Government's intention was not to interfere with the course of justice. He stated in Court that on 13 May, a written application was made by the present applicant to the Minister in charge of the Department alleging that he had been falsely implicated in a defalcation case and that no sanction had been obtained for his prosecution and asked for the intervention of the Government. It is interesting to note that on the hearing of this Rule the advocate for the accused stated that the accused had no knowledge of the letters. Section 197, Criminal P.C. provides: ... when any public servant who is not removable from his office save by or with the sanction of a. Provincial Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take-cognizance of such offence except with the previous sanction of the Local Government.