PROVINCE OF BIHAR Vs. BHIM BERA

JUDGEMENT

(1.) This appeal by Government is against a decision of the Sessions Judge of Purulia, acquitting four persons, Bhim Bera, Atul Dalal, Bhagirathi Barik and Jadav Barik, on appeal. These four respondents are all cartmen of Chakulia. They were convicted by a first class Magistrate under Rule 81(4), Defence of India Rules, and sentenced to six months rigorous imprisonment each, in the following circumstances. On 16-8 1943, Notification No. 11277-P.C. 324/43 P.C. was published in the Official Gazette, whereby the Provincial Government, in exercise of the powers conferred by Clause (a) of Sub-rule (2) of Rule 81, Defence of India Rules, ordered that no person shall export or carry or cause to be exported or carried by rail, river or road any quantity of any of the commodities specified in the schedule, or any product thereof, from any district in the province of Bihar to any place outside the province of Bihar, except with the written permission of the Chief Controller of Prices and Supplies, Bihar. There was a proviso with which we are not concerned. The annexed schedule included, inter alia, rice and pulses.

(2.) On the night of 2-12-1943, Amarjit Singh (P.W. 3), Inspector of police, Ghatsila, went by train to Gidni in Bengal with Havildar Radha Prasad Singh (P.W. 6), constable Rameshwar Singh (P.W. 4) and others in order to detect cases of contravention of the order just cited. They alighted in the small hours of the morning, and began to walk back towards Chakulia. The boundary village in Bihar in that area, as the map shows, is village Bend, the actual border being a river on the boundary of that village. When the police party got to the outskirts of village Bend they saw four carts coming towards Bengal, and driven by the four respondents. The carts were found to contain 12 bags of rice and 9 bags of dal (pulse). The cartmen and the loaded carts were brought to Chakulia, and there the Inspector lodged a first information (EX. 1), at 9 A.M. This information, while mentioning the facts and the names of the cartmen, named only one person, Benarsi Marwari, of village Gidni as accused, on the ground that he was the merchant who had purchased the grains at Chakullia to take them to his godown at Gidni. After police investigation charge-sheet was submitted against this man and another Marwari, presumably the vendor. The Subdivisional Officer, who had taken cognizance on the police report, transferred the case for trial to Mr. Sarkar, a first class Magistrate, who eventually convicted the respondents. The proceedings then took a peculiar and unusual course. On 10-5-1914, the two accused persons Benarsi Marwari and Bishwanath Marwari were present, and two prosecution witnesses were examined. These prosecution witnesses were two of the cartmen respondents, namely, Jadav Bank and Bhim Bera. A very astute move was then made by the lawyer defending the Marwaris. He filed a petition for making the two cartmen already examined, and who had just given evidence against the Marwaris, accused persons in the case. The Court Sub-Inspector apparently walked straight into the trap, and asked that all the four cartmen should be made accused. This was accordingly done, and the trial thereafter proceeded against all six persons. The learned Magistrate made no formal order expunging from the record the evidence of the two cartmen already examined, though he seems to have realised that obviously the evidence of two accused persons could not be used in the trial, because in his judgment he says "it will be seen that in order to be scrupulously fair to the accused persons, I have not considered their evidence at all in this case."

(3.) On 28 July, after all the prosecution witnesses had been examined, the learned Magistrate, evidently excluding from his mind the evidence of the cartmen (P. WS. 1 and 2), decided that there was no prima facie case against the Marwaris, and so he discharged them under Section 253, Criminal P.C. He then proceeded to frame charges against the four cartmen, and after defence they were convicted as aforesaid for breach of the Government order already quoted. The Magistrate held that on the evidence it was clear that the cartmen were taking the grains from Bihar into Bengal. On appeal the question of any prejudice to the accused by reason of the procedure followed was apparently not raised. At all events, the learned Judge has made no reference to this matter in his judgment. He acquitted the respondents on three grounds, first because the prosecution had not proved due compliance with the provisions for publication of such orders contained in Rule 119, Defence of India Rules; secondly, because he thought the onus lay upon the prosecution to prove that the export was being made without the written permission of the Chief Controller of Prices and Supplies, Bihar, and the prosecution had not attempted to discharge that onus; and, thirdly, because on the facts he thought it had not been established that the cartmen had in fact taken the grains across the border. There were discrepancies in the evidence, and they might have been arrested within Bihar, in which case it was not sure that they were crossing the border, or in Bengal, in which case it was not sure that they had crossed it.