RAM KRISHNA SINHA Vs. EMPEROR

JUDGEMENT

(1.) These are three rules arising out of the same trial which were heard together. The petitioner in Rule 265 is Ram Krishna Sinha, a pleader practising in the Burdwan Courts, that in Rule 266 is Tarak Nath Das, a Bench clerk of the Second Munsif's Court at Burdwan and that in Rule 267 is a clerk of the said pleader, Radhaballav Samanta. The main charge against them was one of conspiracy on several counts, the conspiracy being one to abstract court-fee stamps from Court records and use them again, knowing that they had been used before. The removal of such a stamp from a document with intent to cause loss to Government is made an offence under Section 261, I.P.C., while the using of a stamp known to have been used before is an offence under Section 262. A common charge of conspiracy was laid against all the three accused under Section 120-B read with either of these sections and with Section 409 (criminal breach of trust by a public servant). Against the Bench Clerk, there was an additional charge of a substantive offence under Section 409 as well as one under Section 34 (3), Court-fees Act, for selling stamps without being a person appointed to sell them, this last charge being in respect of three such sales on different dates in the course of a year. Against the pleader and his clerk, there was an additional charge under Section 262, I. P. C, this also in respect of three such offences committed within the space of twelve months. The petitioners were tried by a Magistrate of the First Class, Mr. V.C. Dutt, the second officer at Burdwan, and convicted on all the charges. The sentences were as follows: Ramkishna.-Two years rigorous imprisonment under Section 120- B/409 and two years rigorous imprisonment and a fine of Rs. 500 (in default further rigorous imprisonment for six months) under Section 262, no separate sentence being passed under Section 120-B/261 or Section 120-B/262, Tarak. - Two years rigorous imprisonment under Section 120-B/409, two years rigorous imprisonment under Section 409, and two years rigorous imprisonment and a fine of Rs. 500 (in default further rigorous imprisonment for six months) under Section 120 B/261, no separate sentence being passed under Section 120- B/262 or Section 34 (3), Court-fees Act. Radhaballav.-Eighteen months rigorous imprisonment under Section 120-B/409 and eighteen months rigorous imprisonment under Section 262, no separate sentence being passed under Section 120-B/261 or Section 120-B/262,

(2.) The sentences of imprisonment in each case were to run concurrently. On appeal to the Sessions Judge, the conviction and sentence passed on Tarak under Section 409 only were set aside; otherwise the convictions and sentences of all the accused were maintained. A preliminary point was taken on behalf of the petitioners which it is necessary to dispose of first : it was that the trial before Mr. V.C. Dutt was without jurisdiction, and consequently void ab initio. It appears that the S.D.O. of Burdwan, Mr. B. Sinha, took cognizance of the case under Section 190 (1), Clause (b), Criminal P.C. on a police report and finally fixed the hearing for 8 May 1935, directing that the case would go on from day to day from that date. On this date, however, Mr. Sinha happened to be away on tour, and the second officer Mr. V. C. Dutt was in charge of the S.D.O.'s file at headquarters. The case accordingly came before him on the fixed date, when on the application of the Public Prosecutor it was adjourned to 18 May. The order which Mr. Dutt recorded was this : "Fix case for 18 May 1935 and on subsequent dates as already fixed. Accused as before." Pursuant to this order, Mr. Dutt took up the hearing on and from 18 May apparently without any objection from the accused at that stage. At the conclusion of the evidence however on the date prosecution arguments were to commence, a petition was filed on their behalf complaining that the case had not been properly transferred to the Court of Mr. V.C. Dutt, and that as such the proceedings were ultra vires. The learned Magistrate rejected the petition by the following order: The case was taken cognizance of by the S.D.O., Sadar, and was taken up for hearing by me as second officer from the general file of the S.D.O. There seems to be no irregularity, or if any it is very technical and curable under Section 537, Criminal P.C.

(3.) The Magistrate proceeded to hear arguments, and in the end convicted and sentenced the petitioners as already stated. In answer to the same objection which they renewed in this Court in the petitions on which the rules were issued, the trying Magistrate has submitted the following explanation: The learned Deputy Magistrate (meaning Mr. V.C. Dutt himself) was acting as S.D.O., and he intended to try the case himself and to transfer the case to himself, but forgot to write the order. The defect, if any, is formal, and no prejudice has resulted.