KING Vs. KNCHACHAN

JUDGEMENT

(1.) This rule was issued to K.N. Chachan, a merchant of Muzaffarpur, to show cause why an order of discharge in a case in which he was the accused should not be set aside and the prosecution proceeded with. Notice was also issued to the District Magistrate, Muzaffarpur, and to the Advocate-General.

(2.) The facts are as follows: On 19 March 1947 Mr. Sukh Nandan Thakur, Market Inspector of the Rationing Office at Muzaffarpur, submitted a report to the Sub-divisional Officer, stating that on 17 he had detected a case against N. Ahmed, Godown Manager, which disclosed that the latter, in league with the stockist K.N. Chachan, had been "carrying on the smuggling business of the Government Godown" and that at 7 A.M. on 18 June Chachan had visited him and offered him Rs. 100 to suppress the evidence against him. Chachan also offered "to give any statement required against the Godown Manager." Thakur stated that this happened in the presence of Ramakant Mishra of village Patore, and also reported that he had refused the bribe and that Chachan had then left, saying he would return in the afternoon. Thakur requested the Sub-divisional Officer to "get this case detected in the presence of & Magistrate." On this the Sub-divisional Officer endorsed: "Mr. R.K. Shukla will please take necessary action." Mr. Shukla is a Magistrate. On the following day, Thaktir submitted a further report to the Sub-divisional Officer reiterating the substance of his first report, and adding that N. Ahmad, Chachan and the latter's servant. Nandu were in league; that Chachan had visited his office on the afternoon of the 19 and had promised to see him at his residence the following morning. By arrangement with Thakur Mr Shukla arrived at the former's residence at 7 A.M. on the morning of 20th. He was accompanied by Mr. K.N. Sharma and Kishun Prasad Singh. Two other persons, Rambinode Mishra and Ramakant Mishra were also called in. These two latter seated themselves on a chauki in the room in which Thakur was awaiting the arrival of Chachan. Shukla and Sharma were in the verandah behind the shutter of the door leading into this room. At 8 A.M. Cbachanu arrived and is reported to have said "Please save myself and Nandu. Nandu is my own man. I will ask Nandu to give any statement against Manager Saheb." It is said that he then handed. Thakur a currency note for Rs. 100 which Thakur placed on the chauki. At this point of time Shukla and Sharma entered the room, Chachan admitted his guilt, fell at Shukla's feet and asked him to save him. He was taken into custody and produced before the Sub-divisional Magistrate with a written report by Shukla suggesting a prosecution under Section 161/116, Indian Penal Code. The order-sheet shows that the Sub-divisional Magistrate treated this report as a complaint by Shukla and took cognizance the same day. The complaint is set out in extenso: Submitted to S.D.O. According to your dated 19 March 1947 (attached). I took action. The applicant B. Shukhnandan Thakur informed me on 19 evening that the transaction was expected to take place in the next morning about 7 to 8 A.M. For protection and to avoid any leakage I took Mr. K.N. Sharma also with me on 20 March 1947 at about 6.30 A.M. I also took B. Kishun Prasad Singh of Sahebganj. We three reached the house of Babu Sukhnandan Thakur M.I. at about 7 A.M. and concealed ourselves inside the house. The neighbouring witnesses Rambinod Misra and Ramakant Mishra were also called there. We two, myself and Mr. K.N. Sharma, took our position on the inner verandah of the house close to the door shutters of the outer room from where the place of occurrence was in sight and within hearing. The three public witnesses named above stood in the same room where B. Sukhnandan Thakur was sitting. We waited there for an hour. At about 8 A.M. the accused Kedar Nath Chachan came and entered inside the room where B. Sukhnandan Thakur was sitting on a charpoi. The former took his seat in a chair, in front of the latter, Then began the talks. The accused Kedar Nath Chachan said and we heard and saw: Please save myself and Nandu. Nandu is my own man. I will ask Nandu to give any statement against Manager Saheb. Roopaya le liya jai aur hamara kam Tear diya jai jisme hamara aur Nandu ha jan banch jai. He then placed the note in the Ext (sic) in the right hand of B. Sukhnandan Thakur M.I., taking it out from his left upper pocket of his shirt. The M.I., placed it on the charpoi. As soon as the transaction completed I along with Mr. K.N. Sharma burst upon the scene. We recovered the G.C. Note and prepared the search list in presence of the search witnesses who signed it. The accused Kedar Nath Chachan pleading guilty began to request and rub my feet against his forehead saying; kisi tarah se hamko chhor dijiye. He then also touched the feet of B.K.N. Sharma, making the same request. He refused to give any written statement. He wanted bail but there was no bailor. The accused wanted that his brother might be called. We sent a man to call him to the S.D.O. We came by rickshaw and K. N. Sharma escorted the accused. Fearing the man to delay in calling a bailor, he allowed (sic) by K.N. Sharma to show his brother from Town P.S. The accused was then presented before S.D.O. The accused may be prosecuted under Section 161/116, Indian Penal Code. The following other witnesses will prove the charge: 1. B.K.N. Sharma. 2. B. Sukhnandan Thakur M.I. Rationing Office. 3. B. Kishun Prasad Singh, Vill. Ahiapur, P.S. Sahebganj. 4. B (Rama Kant Mishra. 5. B. Rambinode Mishra, home address Vill. Patorh, P.S. District Darbhanga, at present both in Mohalla Rambagh Mantarwali Muzafiarpur. Paper and articles attached : 1. G.C. Note of Rs. 100 (hundred) No. A/80, 116708. 2. The search list. 3. The order of S.D.O. dated 19 March 1947. Sd/R.K. Shukla, 20 March 1947. On the 21 the Sub-divisional Magistrate transferred the case to Mr. Suleman "to push the case quickly." After three adjournments the hearing was fixed for 28 June 1947. There is no entry in the order- sheet on 28 or for the next 25 days. The record had apparently been called for by the Government, as the next entry dated 30 June shews: "This case record was called for by the Government and has since been received back today. Fixed 24 July 1947." After two more adjournments, the hearing was fixed for 22nd September, by an order of 11 September, the record having, in the meantime, been called for by the District Magistrate. On the 22nd, the record was received back from the District Magistrate at 4 P.M. and the hearing was fixed for 9th October. On the last mentioned date the entry in the order sheet is: Public Prosecutor flies petition withdrawing the case under order of the District Magistrate. Case is withdrawn, Accused discharged under Section 494, Criminal P.C. Right months later, on 22 June, 1948, there is this entry in the order sheet of the case over the initials of the District Magistrate: Government has orderd that the case should proceed and be thrashed out in Court. The case is transferred to Mr. D.N. Sinha, Munsif Magistrate, for disposal. Please summon the accused without delay and then fix dates for hearing and timely intimate dates of hearing to Mr. Rrajeshwar Prasad, Public Prosecutor of Patna, who has been ordered by the Government to conduct the case, Government desire that the case should be expedited. The next entry, on 25 June, shews that 28 was fixed for the hearing. In the margin, over the initials of the District Magistrate, is an entry dated 9 July 1948: "Record submitted to Government as desired." Then on 29 October, is the following entry: Case recalled to my file. Seen petition of public prosecutor. Accused discharged under Section 494, Criminal P.C. This entry bears the initials of the District Magistrate. On 29th November, the High Court called upon the District Magistrate to send the record of the case, Emperor V/s. Rai Saheb Babu Chachan under Secs.161/116". The Additional District Magistrate replied on the 30 stating: The District Magistrate is on casual leave and the record will be submitted immediately on his return. Absence of the District Magistrate on casual leave was no excuse for the Additional District Magistrate's non-compliance with the order of this Court to send the record. During the absence of the District Magistrate, the Additional District Magistrate was in charge and should have com- plied with the order immediately. As he failed to do so, a notice was sent to him calling upon him to have the record produced on 6 December, or to attend personally and shew cause why he should not be committed for contempt of the High Courtis order. On 2nd December, the record was sent to this Court with the following explanation by the Additional District Magistrate: From enquiry it transpired that there was no case against K.S. Babu Chachan, but there was a case Emperor V/s. K.N. Chachan, under Section 161/116, Indian Penal Code which was dealt in the confidential section as it was wanted by Pandit Raghunandan Pande, Secretary, Anti-corruption Department, and the record was not immediately available. As I am a new to this district and I was really in doubt whether the records of Emperor V/s. R.S.K.N. Chachan should be sent or I should wait for the District Magistrate to come and to ascertain whether R.S.K.N. Chachan or R.S. Babu Chachan is the same person or there was some mistake in name and whether the records of Emperor V/s. R.S.K.N. Chachan should be sent and hence the delay.

(3.) This explanation cannot be regarded as satisfactory. If there was any doubt in the Additional District Magistrate's mind whether the High Court's requisition for the record of the case of Rai Saheb Baku Chachan. under Secs.161/116 referred to the case of Rai Saheb K.N. Chachan under Secs.161/116, the doubt could have been resolved by enquiry from the Sub-divisional Magistrate. In any event, in his letter of 30 November, the Additional District Magistrate did not say that he had any doubt about what record the High Court wanted. The only reason he gave for not submitting it was that the District Magistrate was on casual leave. Why so much vacillation has been shown in dealing with this case it is difficult to understand. Here was a prosecution started on 21 March 1947, on a complaint disclosing the commission of an offence under Secs.161/116, Indian Penal Code. The complainant was not a private person, or any one who might be suspected of lodging a false case, or attempting wrongfully to implicate K.N. Chachan in a false charge, for the complainant was no other than a Magistrate whom the Sub- divisional Officer himself had directed to be present at the proposed visit of the accused to the residence of the Market Inspector. On this complaint, the Sub- divisional Magistrate took cognizance, thereby indicating that he considered the allegations made by the complainant required judicial investigation. In June Government called for the record of the case. In another case we have already commented on the illegality of the action of the Government in calling for the record of a pending case. It is not proposed, therefore, to comment further on this aspect of the matter. What is clear, however, is that Government returned the record without seeing any reason why the prosecution should not proceed thus agreeing with the Sub-divisional Magistrate that the allegations set out in the complaint required judicial investigation. Why then, soon after the Court in seisin of the case had received the record back from Government, did the District Magistrate again send for it? That is a question which requires a convincing answer in view of the Government's implied approval of the prosecution proceeding. It is at this stage that it becomes necessary to refer to a letter dated 22nd August 1947, which was received by the District Magistrate. The writer of this letter is Mr. Mahesh Prasad Sinha, a member of the Legislative Assembly, and an advocate of the Muzaffarpur Bar. This is the letter: Muzaffarpur,22-8-1947. My dear Sahiji, Sometimes back some golmal was detected in the Government godown here upon which proceedings were drawn up against Mr. N. Ahmed, the Manager of the godown. I wrote to Mr. Jillespie, the then District Magistrate to look into the matter personally. He exonerated Mr. N. Ahmed of all the charges and passed unwholesome remarks against one Sukhnandan Thakur who was the author of the case against N, Ahmed. It has been brought to my notice that the same Babu Sukhnandan Thakur has tipped one Marwari named Redamath Chachan and has entangled him in a false criminal case. I am told that a very prominent man is trying to gain some undue advantage from that Marwari gentleman. This scandal is talked about. I therefor request you to look into this matter as this case also is an off-shoot of Sukhnandan Thakur's plan about which Mr. Jillespie made strong remarks. This should be thoroughly examined by competent persons. If the case be worth pursuing it should be taken up vigorously or if not it be dropped. Immediate action be taken by you in this connection before the case starts. Yours sincerely, Sd/- Mahesh Prasad Sinha. At the request of this Court, this letter was produced by the District Magistrate, although objection to our calling for it was taken both by the Advocate-General and by Mr. Baldeva Sahay on behalf of Chachan. It was contended that this letter should not be regarded as addressed to Mr. Sahi as District Magistrate but as the head of the district administration, and, therefore, it should not be regarded as relevant to the matter now before the Court, namely, whether the order discharging Chachan should be set aside. It is true that the District Magistrate has more than one capacity: He is the head of the police in his district and the Chief administrative officer, besides being the head of the magistracy. But in regard to a pending case he has only one capacity-- that of a superior Magistrate, to whom, in some cases, an appeal lies from a decision of a sub-ordinate Magistrate, and who, in other cases, has revisional powers with regard to the proceedings and decisions of Magistrates subordinate to him. It is, therefore, highly improper for any one to communicate to the District Magistrate, with reference to a pending case, any matter which may have the effect of prejudicing his mind should the occasion arise for him to exercise appellate or revisional power. If that simple proposition was not known to Mr. Mahesh Prasad Sinha, the legislator, it should have been known to Mr. Mahesh Prasad Sinha, the advocate. In this letter which, it must be emphasised was in relation to a case which was properly in seisin of a competent Court, Mr. Mahesh Prasad Sinha categorically informs the District Magistrate that the case pending against Chachan is a false case and that it is an off shoot of an alleged plan of Sukhnandan Thakur to implicate N. Ahmed in a false charge, and it requested the District Magistrate to have the matter "thoroughly examined by competent persons," thereby implying that the Magistrate before whom the matter was pending was not a competent person. It is most regrettable that any one and, more particularly, an advocate, should thus intervene in a pending case and endeavour to influence the mind of a superior Magistrate by ex parte statements and by casting aspersions on the capacity of the presiding officer of the Court in seisin of the case.