BISWANATH KHEMKA Vs. SEW CHAND ROY

JUDGEMENT

(1.) These rules are for the transfer of two cases at present being tried by Mr. Md. Safi Khan, Additional Presidency Magistrate. The petitioner is one of seven accused who are being tried in both the cases. A previous application to the Chief Presidency Magistrate under 3.528, Criminal P. C, has been rejected by him. Mr. Probodh Chandra Chatterjee appears on behalf of Sew Chand Roy and Bhagwandas Bajoria, two of the other accused persons and states that he sup. ports the petitioner. No one appears for the remaining accused.

(2.) Originally on 26 February 1944 a challan was submitted by the police against the seven accused for offences of hoarding on three counts and profiteering on three counts, offences under Rule 81(4), Defence of India Rules. The cases were eventually transferred on 29 April 1944 to Mr. Md. Safi Khan for disposal and on 11 May the trial began. According to the petitioner the Public Prosecutor on 11 May stated that he would proceed only on the charge of profiteering and that he would make a statement later on so far as the hoarding charge is concerned. We note that in the petition to the Chief Presidency Magistrate the petitioner alleged that the Public Prosecutor had stated that he abandoned the case of hoarding, and in an explanation submitted by the Public Prosecutor to the Chief Presidency Magistrate he corrected this and the petitioner apparently has accepted the correction and has framed his present petition accordingly. So far as the record shows all we have is that on 22 July, 1944 Mr. Md. Safi Khan recorded an order noting that in the police report the accused persons were also charged with hoarding and that the Public Prosecutor had been ordered to give the names of the prosecution witnesses in the case by 24 July. On that date there was an order that the investigating officer had been heard and the case was to be put up on 29 July. On the latter date there is an order that the Public Prosecutor stated that he would not conduct the case, the police prosecutor would take charge of it and the case was adjourned to 9 August. On that day the petitioner filed his petition under Section 528, Criminal P. C. By 22 July, the other case of profiteering had proceeded to this stage when the charge had been framed and the cross-examination of witnesses had commenced. According to the explanation of the trial Magistrate submitted to the Chief Presidency Magistrate ho only discovered after evidence on the three counts of profiteering only had been led, and at a late stage, that there were also three counts of profiteering (hoarding sic) in the charge and he accordingly asked the Public Prosecutor either to lead evidence in the charge of hoarding or to withdraw that charge. He gave the Public Prosecutor time to consider the point. But the latter then and there stated that he would withdraw the charge later on if necessary. The Magistrate, however, started a separate case of profiteering (hoarding sic) against the accused on 9 August and a separate challan was submitted on these charges. According to the petition the Public Prosecutor said on 22 July, that he would not take the responsibility of proceeding with the hoarding case, that he would retire from it and that thereupon the Magistrate said he would proceed on his own responsibility. The Magistrate asked the Public Prosecutor to let him have a list of witnesses whereupon the Public Prosecutor referred the Court to the investigating officer whose duty it was to submit the list of witnesses. Similar statements appear in the petition to the Chief Presidency Magistrate and have not been controverted by the Public Prosecutor in his explanation.

(3.) It will be seen that there is a discrepancy between the version given by the petitioner and supported by the Public Prosecutor, and that given by the learned Magistrate as to the question whether the Magistrate's attention was drawn to the hoarding charges and whether anything was said at the earlier stage when the case was opened on n May, on this subject. It may well be that both versions are correct, and either the Magistrate happened not to hear the Public Prosecutor's statement on the point or he had forgotten it in July. We certainly accept the Magistrate's statement that so far as he was concerned he thought on 22nd July that this was the first time that it came to his notice. This difference perhaps may be some explanation of the rather unusual, not to say disrespectful, conduct of the Public Prosecutor in the matter. According to the petitioner the Public Prosecutor on 22 July, stated that the materials at his disposal were in his opinion not enough and that was why he was not proceeding with the case of hoarding. The Public Prosecutor apparently was of opinion that he was the final Judge of the matter whether the case should proceed or not. The Magistrate in his explanation says that he asked the Public Prosecutor either to lead evidence in the charge of hoarding or to withdraw the charge. It is quite clear that the Magistrate was correct and that the Public Prosecutor had only three courses open to him, either to proceed with the case, or to ask for permission to withdraw, or possibly to suggest that in view of the fact that if the case of profiteering succeeded it might not be really necessary to continue the other, the hoarding case might be kept pending till a later stage. He certainly, however, had no right to attempt to force the Court to accept his view and to drop the hoarding case and apparently to discharge the accused. It is the Court which takes the responsibility of deciding whether a charge should be allowed to be withdrawn or not. When a Public Prosecutor asks that a case be withdrawn on the ground that the evidence is insufficient, and that permission is refused, it is obviously his duty to place the evidence before the Court even though he may consider it to be insufficient to support the charges. He is quite at liberty in presenting the evidence to adhere to his view and to express it to the Court, but it is certainly not correct conduct for him to decline any so-called responsibility, to refuse to assist the Court, and least of all to refuse to supply even the list of witnesses. As is pointed out by the learned advocate appearing now for the Crown in this case, the statement of the Public Prosecutor that he had not the list of witnesses is not very consistent with his statement that the evidence at his disposal was not sufficient to support the charges. He could not be in a position to express any opinion on the evidence in the case, unless he knew who were the witnesses who were going to give it. In our opinion there has been something of storm in a tea cup over a comparatively trivial matter, and had the Public Prosecutor acted correctly, there could have been no further trouble in the matter. The Magistrate in not accepting the ipse dixit of the Public Prosecutor as to the value of the evidence in the case was acting entirely properly and in the exercise of his discretion as required by Section 494, Criminal P. C, and nothing he has done in this respect could form any justifiable or reasonable ground for the accused to consider that he could not get a fair and impartial trial before the Magistrate. It is obvious on the materials that nothing has been shown to us as showing any real bias on the part of the Magistrate, and in our opinion nothing has been shown which would justify any reasonable person, properly advised to what the law is, to imagine that there was any such bias. We think that there is no ground whatever, therefore, for transferring either of the cases from the file of the present Magistrate. We would however remark that in our opinion the Magistrate would have been well advised to have kept the hoarding case pending in view of the fact that no action had been taken between May and 22 July, and that it might be proper to consider whether to proceed with the case of hoarding before the result of the profiteering case had been ascertained. This is entirely apart from any question as to whether the Public Prosecutor's view of the value of the materials at the disposal of the prosecution in the hoarding case, is correct or not.