KING Vs. HARIHAR SINGH

JUDGEMENT

(1.) This rule was issued in consequence of it having come to the notice of this Court that the trial of a criminal case, in which the police submitted a charge-sheet as long ago as 6 March 1947, has not been completed and the proceedings are being held up indefinitely under an order of Provincial Government.

(2.) The facts are as follows: Some 200 bighas of land were in possession of the Sathi Kothi under a lease from the Bettiah Raj, which is under the management of the Court of Wards. On the expiry of the Kothi's lease, the accused, who claim to be hundadara under the Kothi, made a written application to the Manager of the Bettiah Raj for settlement of the land with them as they were in possession. The land, however, was settled with one Rai Bahadur R.P. Sahi, who was then Excise Commissioner. The persons claiming to be the hundadars protested against this to the General Manager and to the public authorities. It appears that it was apprehended that there might be a breach of the peace and that a military force was sent down to maintain order. On 24 January 1947, a first information report was lodged by one Jugeshwar Tripathi, describing himself as the karpardaz of R.P. Sahi, alleging that the accused had com-mitted rioting and other offences in an attempt to oust Sahi. A charge-sheet was submitted by the police on 5 of March 1947, alleging the commission of offences under Secs.148, 324, 325 and 326, Indian Penal Code, against a large number of persons. The accused, who were in custody, applied to the Sessions Judge for bail and some of them were released on furnishing bail. Those to whom bail was not granted applied to this Court and were granted bail. The learned Judge who dealt with the application observed; in the course of this order: "I am unable to understand why the trial has not yet commenced and why it has been thought necessary to detain the petitioners in hajat". It was not until the 13 of June that the trial actually commenced, when some of the prosecution witnesses were examined-in-chief. On that day an application was made to the Court by the first informant asking leave to withdraw the case as it was alleged that the dispute had, by agreement, been refer, j red to a certain person for settlement. The Magistrate, instead of rejecting the petition, as the should have done, because a first informant has no right to withdraw a case that has been sent up by the police, forwarded it to the District Magistrate, with the record, "to pass, orders, if any". By this order, the trying Magistrate appears to have abdicted his functions and to have left it to the District Magistrate to decide whether the application should be accepted or rejected. What action the District Magistrate took on this does not appear from the order-sheet, but on 7th July more prosecution witnesses were examined-in-chief, and the case was adjourned until the 23rd. On that day the Magistrate received two telegrams signed "Bihar" which, we understand, is the telegraphic signature of the Bihar Government. The first of these stated: "Government desire that Sathi cases coming up for hearing on 23 instant be adjourned." The second telegram states: "Sathi cases may be kept pending till further orders." If the District Magistrate was aware of any grounds on which an adjournment of the trial could have been legitimately asked for, he should have instructed the Public Prosecutor to ask for an adjournment. Instead of doing that, the District Magistrate sent copies of the telegram to the Sub-divisional Officer with instructions to communicate the contents to the trying Magistrate. The latter without making any attempt to ascertain why an adjournment was desired, or whether there were any grounds for it in fact, without exercising his judicial discretion at all, and without giving the accused an opportunity of objecting to the adjournment postponed the hearing of the case until 14 August, stating in the order-sheet: "Prosecution witnesses to be summoned again when needed". For the next three weeks nothing happened. On 6 of September, the accused made an application for a date to be fixed for continuation of the trial. The Magistrate passed the following order: "No Government order has been received as yet in this connection. Case is, therefore, adjourned to 26 September 1947." No orders had been received by the last mentioned date, and the Magistrate submitted the record to the District Magistrate with a request to obtain the final decision of Government as to whether the case was to proceed or was to be withdrawn. Thereafter, some 15 adjournments took place, in every case the reason given being that no orders had been received from Government, and so the matter dragged on until April 1948, when, it appears, even the conscience of the District Magistrate began to be disturbed by what was taking place, and it seems that he proposed to withdraw the prosecution. At this stage the Commissioner of the division saw fit to intervene and prevent this being done. No further action appears to have been taken until 1 June, when the order-sheet records the following: No order from the Government received as yet, though reported the matter to the District Magistrate. I learnt from the District Magistrate personally that he had reported about the withdrawal of this case to Government but no order was received. Await and put up on 1 of July 1948. As no orders had been received by 1 July, the case was again adjourned until 1 August, and so but for the fact that the accused had been released on bail they might have been kept in detention until the end of their natural lives and the case might have remained pending until the end of time but for the fact that the matter came to the notice of this Court on the administrative side, and this rule wag issued to the District Magistrate and the first informant, calling upon them to show cause why the trial should not proceed at once. As it was considered desirable that the Provincial Government should have an opportunity of explaining its unwarranted intervention in the matter, notice was also issued to the Advocate-General.

(3.) The Advocate-General then appeared and informed us that he was instructed on behalf of the Provincial Government to assure the Court that Government had no intention of interfering with the course of justice, but that what was intended was that the District Magistrate should cause an application for postponement to be made to the trying Magistrate in the normal way, that is to say, through the Public Prosecutor. He has also informed us that Government does not propose to withdraw the prosecution but to proceed with the trial.