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TMI Blog1943 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... letters which he alleged were written by the then Chief Minister of Bengal, Mr. A.K. Fazlul Huq, to the District Magistrate during the pendency of the proceedings which prejudiced the proceed, ings and asked the Court to issue a rule upon the Government of Bengal to produce these letters. The second rule was granted and the Government of Bengal through the Deputy Legal Remembrancer produced the said letters in a sealed cover and deposited them with the Registrar of the appellate side of this Court. In view of the nature of the allegations made in the second application, the matter was reported to me by Lodge J. who presided over the Court which issued the rule and I caused the sealed envelope to be opened and the letters examined. Farther, in view of the matters disclosed by those letters this Special Bench was constituted to hear the application. 2. The short story of the facts relating to the assault case in which the accused was convicted are as follows : The accused is the Superintendent of Police, Berhampore, in the District of Murshidabad. On 9th September 1942, there were disturbances in the civil Court buildings at Berhampore as a result of which the District Judge sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in the direction towards the gate. The accused said that he merely seized the complainant by the shoulder with one hand and put the other on his face and turned him round and pushed him towards the gate. At the same time the crowd shouted slogans such as Bande Mataram and Inqilab Zindabad and the accused ordered the police to clear them away from the gate. The complainant went out of the compound and reported the matter to the District Magistrate as well as to the Local Bar Association. Thereafter these proceedings were started. 3. The complaint was heard by a First Class Magistrate, Mr. S. Choudhury, who decided that the assault was committed whilst the accused was acting or purporting to act in the discharge of his official duties and that therefore the accused could not be prosecuted without the previous sanction of the Local Government under Section 197, Criminal P.C. At this stage no evidence other than that of the complainant was heard by the Magistrate. The complainant thereupon moved the District and Sessions Judge of Murshidabad for a further inquiry into his complaint. No further evidence was heard by the Sessions Judge but he made this comment: It seems to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate and the Sessions Judge - had not given effect to the accused defence. Had the matter remained there this Court would have dealt with it on the pleas put forward. But the production of the letters has raised an entirely new situation - one which as far as I am concerned is unique. 5. To understand the letters, it is necessary to refer to another case which was pending at the same time in the same district. It is the case of Emperor v. Sadhu Majhi, Kumar Singh Chajjore and others. The facts of this second case shortly are as follows : One Ebrahim Hossain Chowdhury was a rice contractor living in Azimganj within the police station area of Jiaganj in Murshidabad, a few miles away from Berhampore. Ebrahim had a contract to supply 1000 maunds rice to the Berhampore Special Jail. On 19th August 1942, Ebrahim took 59 bags of rice from his house at Azimganj in bullock carts to Badarighat from where be loaded the bags into two boats at about 8-30 p. M. on a moonlit night. When he was loading the first instalment of rice into a boat he met a certain Satya Kinkar Bandhu, at one time one of the accused in the second case, who asked him where the rice was going. Ebrahim told hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rice as belonging to him and lodged a complaint. Apart from this one bag of rice Ebra him never saw his rice again and it has not been traced. The rice as stated before was intended for the Berhampore Special Jail. 6. One of the accused in the second case, Kumar Singh Chajjore, is a Municipal Commissioner of the Azimganj-Jiaganj Municipality and a man of some position. This removal of rice occurred within the area over which the present accused, Mr. Pollard; was Superintendent of Police, and the accused busied himself in the investigation of the matter. The Jiaganj rice looting case came up before Mr. I.B. Nag, the Sub-divisional Officer of Lalbagh, which is a few miles from Berhampore and within the jurisdiction of the District Magistrate of Murshidabad, Mr. S.K. Chatterjee. Mr. Nag began the hearing of the case on 21st October 1942 and admitted most of the accused in the rice looting case to bail between 21st to 2Sth September. At this stage the letters referred to become important. These letters are four in number-three of them purporting to have been written by Mr. A.K. Fazlul Huq who was then the Chief Minister of Bengal but resigned his office in March 1943. These lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical importance in the case Emperor v. Kumar Singh Chajjore and Ors. which is now pending in the Court of the Sub-Divisional Magistrate, Lalbagh. As I am very busy with the Assembly Sessions, and I have very little time to spare, I could not go through the papers of the case. I understand the date of the case is fixed for the 1st of October. I would very much like that the case be adjourned to some later date, say, after the Pujahs, so that I can go through the papers and decide whether Government should have any say in the matter. 8. In the ordinary way that letter would have reached Mr. Chatterjee on 30th September or 1st October 1942. On 1st October 1942 there occurs this note in Mr. Nag's file in the Jiaganj case. All the accused were present. C.S.I. presses for a remand on the ground that the Court Inspector will conduct the prosecution. The case is adjourned to 2-11-42 and 3-11-42 (Pujah holidays intervening). Accused as before. 9. It is evident that Mr. Fazlul Huq's wish with regard to this case had been granted and it was postponed over the Pujah holidays. That it had been granted as a result of Mr. Fazlul Huq's intervention is clear from the next l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for itself. The last paragraph of the letter shows that Mr. Pollard had criticised what had been done in the Jiaganj case. The next letter is one by Mr. Fazlul Huq, the Chief Minister, to Mr. S.K. Chatterjee, dated 28th October 1942. It reads as follows: My dear Chatterjee, This is to introduce to yon Mr. Syed Badruddoja M.A, B.L., M.L.A., Secretary of the Progressive Coalition Party. He is going to see you about various matters connected with the question of price of jute and of the high rise in the price of foodstuffs generally. He will also discuss with you the question of nominations and various other matters in which the present Cabinet is interested. He is one of our principal supporters and a prominent member of the Bengal Legislative Assembly. There is one particular matter regarding which he will speak to you and I hope you will hear him fully and help him to the best possible extent. I am referring to the case with regard to which that Imperial Officer has made those stupid remarks and objectionable comments. You have done well to tell him that it was I who is responsible for the step that haw been taken. I have told the I.G of Police everything, and let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the S.P. the repository of all power. So long as the S.D.O. does his duties honestly and uprightly, he has got nothing to fear. As a matter of taut, if he thinks that the evidence does not justify the commitment and that the facts and the circumstances justify a discharge of the accused, he should not hesitate to do so, because of the consequences which his orders might have on the S.P. I can give him this assurance through you that Government will stand by him and support him in what he does. I have asked Mr. Syed Badruddoja to explain to you what I would very much wish to see should be done. I do not like to put those things on paper. This letter is meant for you only and I hope you will destroy it after perusal. Yours sincerely, A.K. Fuzlul Huq. 13. On this letter there is a note by Mr. Chatterjee as follows : Brought to me by Mr. Badruddoja. Pile. S.K. C. 4-U-42. This letter speaks for itself and it is obviously a direction by the Chief Minister to the District Magistrate as to what he desires to be dope with the Jiaganj case and as the letter says: I have asked Mr. Badruddoja to explain to you what I would very much wish to see should be done. I do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer only to the convicted persons to bring their cases before the Court. He further argued that we had no power to order a retrial. There is no substance in those contentions. We have our ordinary powers of revision and under the inherent jurisdiction of the Court conferred to us in Section 561A, Criminal P.C. we have powers to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. If there were any doubt as to our jurisdiction to use those powers here it is set at rest by Sections (2) and 4 of Ordinance 19 of 1943. 15. In view of the interference that has unquestionably taken place in Jiaganj case we have examined the record in that case. The charges against the Jiaganj accused were under Section 395, Penal Code, dacoity. The Magistrate trying the Jiaganj case found that the action of the accused fell within the definition of dacoity but that there was no e dishonesty on the part of the accused at the time of taking of the rice and proceeded to give his reasons why the dacoity charge should fail, and convicted the accused of the offence of criminal misappropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. The District Magistrate passed on the order of the Government to the Sub-Divisional Officer who communicated it to the Public Prosecutor. The Public Prosecutor then requested the Magistrate to make this order, which is an illegal order, because the Government wished it and because the Sub-Divisional Officer had advised him that the Government wished it. The Government may have certain functions in connexion with prosecutions and for the purpose of the Government conducting prosecutions, under Section 492, Criminal P.C. the office of Public Prosecutor was created. A public prosecutor represents the Crown in prosecutions. If the Government desire to put in a petition or request to the Court they can do so directly through the Public Prosecutor who is the proper officer to put the matter before the Court. But in this instance a request was made to the Court stating that the Sub-Divisional Officer had advised the Public Prosecutor that the Government desired a certain thing. The Sub-Divisional Officer had obviously acted upon instructions from the District Magistrate. Both the District Magistrate and the Sub-Divisional Officer are Superior Officers of the Magistrate who wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Special Magistrate at Lalbagh and its transfer to the file of Mr. S. Chowdhury. He states that the Sub-Divisional Officer (Mr. Nag) at Lalbagh and his subordinate were both to be called as witnesses in the case and that therefore Mr. Nag could not try it. He states that it was proper in the circumstances to transfer it to the file of Mr. Chowdhury at Berham-pore sitting as a Special Magistrate. If nothing else had happened, then those reasons could be accepted as satisfactory without comment. He, however, deals with an allegation in Mr. Pollard's affidavit about the first letter of the Chief Minister: that is the letter of 29th September 1942 and says : This letter had nothing to do with the merits of the case but the Chief Minister wrote in the name of Government for an adjournment in order that he might look into the papers to see if Government would have any say in the matter. It was not known to me why Government should look into the matter. Information may be obtained from the late Chief Minister. I requested an adjournment because the letter of the Chief Minister was in the name of the Government. Government have the right to look into the records of any case. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the Chief Minister. No replies were even given. The letters were merely filed. It is not possible for any District Magistrate to prevent Ministers from writing letters to Magistrates containing improper or untenable requests or unparliamentary language.... The real point is whether improper request had been granted. No such request was granted by the District Magistrate or the trying Magistrate. 19. The statement that no replies were even given is again disingenuous, because the two subsequent letters were clearly brought by Mr. Badruddoja personally on behalf of Mr. A.K. Fazlul Huq to Mr. Chatterjee, as the letters and Mr. Chatterjee's endorsement on them show. Mr. Chatterjee clearly had two interviews with Mr. Badruddoja - Mr. Fazlul Huq's emissary. Nowhere in his letter of explanation does Mr. Chatterjee mention what was said in either of those interviews. That is a very striking omission. It is a fair inference from the letters, and Mr. Chatterjee's endorsement thereon, that something was said to Mr. Chatterjee by Mr. Badruddoja about those letters which referred to the Jiagurjj case and contained threats to Mr. Pollard. I cannot accept Mr. Chatterjee&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses in which charges have been brought against Mr. Pollard in connection with other alleged offences. This introduces extraneous matter which introduction may or may not be justified. I am unable to accept the District Magistrate's contention that no extra judicial influence was brought to bear upon the trying Magistrate for these reasons : (1) It is clear that when Mr. Fazlul Huq wrote the first letter of 28th September 1942, the District Magistrate yielded at once to Mr. Huq's request and had the case stayed and com. municated Mr. Huq's desire to the then trying Magistrate - Mr. Nag. If he does it once it is a fair inference that he would do it again when greater pressure is brought to bear upon him : (2) The decision of the trying Magistrate was clearly contrary to law on the facts as set out by the trying Magistrate : and (3) The effect of the Magistrate's decision and sentence was one which would make it easier for the Government of Bengal to keep Kumar Singh Chajjore in office in the Azimganj-Jiaganj Municipality under Section 22, Bengal Municipal Act. If all this was an accident, it is a most remarkable accident and remarkably fortunate for Kumar Singh Chajjo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect as to be unfit to act as clerk to the justice in the criminal matter. The answer to that question depends not upon what actually was done but on what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference of the course of justice. Speaking for myself, I accept the statements contained in the justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that ' be should scrupulously abstain from referring to the matter in any way, although he retired with the justices; in other words, his position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction In those circumstances I. am satisfied that this conviction must be quashed, unless it can be shown that the applicant or his solicitor was aware of the point that might be taken, refrained from taking it, and took his chance of an acquittal on the facts, and then, on a conviction being recorded, decided to take the point. 24. Counsel for the convicted persons in the Jia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied that there Vas nothing in Lodge J.'s contacts with Pollard beyond the ordinary official contacts and that they had ceased many years ago. Lodge J. at Mymensingh was a District Judge and at the top of the official hierarchy, whereas Mr. Pollard was a junior police officer somewhere near the bottom of it. The gulf between them both in age and status was very wide, and there was nothing but official contacts such as most senior District Judges have had some time or another with police officers in the Province. I informed Lodge J., that I wished him to sit and that I consider it his duty to do so in order that this Bench could have the benefit of his experience and knowledge. He thereupon agreed. I myself have met Mr. Fazlul Huq on many official and semi-official occasions and had no desire to sit on this Bench where his conduct was in question. But where it is my duty, as in this case, to do so, that duty has to be performed, whether I knew Mr. Fazlul Huq before or not. Judges frequently find themselves in a position in which they have to try persons with whom they have had contacts previously, and al-though it may be distasteful to them and they would prefer not to sit, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be interfered with or for even an attempt to be made to interfere with the course of justice. It is very serious indeed when such an attempt is made by the Chief Minister of the Province who possesses great power and influence. In this case it is clear that Mr. Fazlul Huq who at all material times was until April of this year the Chief Minister, used his position to influence the course of it justice in the Jiaganj case for political consideration. When Mr. Fazlul Huq took office as Chief Minister on 12feh December 1941, he took the following oath of office as prescribed by the Instrument of Instructions issued by the Crown to the Governor of this Province. The written record of that oath was produced before us at my request from the Government Secretariat. It was signed by Mr. Fazlul Huq whose signature was verified on oath by Mr. Ellis. It is set out here: I Abdul Kasem Fazlul Huq do solemnly affirm that I will well and truly serve out Sovereign, King George the Sixth, Emperor of India, and that I will do right to all manner of people after the laws and usages of India without fear or favour, affection or ill-will. A.K. Fazlul Huq. 29. In writing the letters set o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for public office. If solemn promissory oaths by persons who take high office in the State are to be disregarded as mere formalities there is no possibility of good government. Mr. Huq is left to the contemplation and judgment of his fellowmen. Mr. Chatterjee, the District Magistrate, who on one occasion at least carried out Mr. Fazlul Huq's wishes, knew full well that he was doing wrong in so doing. I cannot imagine that he was unaware of the judgment in Emperor v. Ebrahim reported in AIR1942Cal219 since this judgment which was of particular concern to District Magistrates-received a certain 5 amount of prominence in the legal press. It was the plain duty of Mr. Chatterjee when he received from Mr. Huq the letter of 29th September, to tell Mr. Huq that he was asking him to do something contrary to his duty and to firmly refuse to interfere. But he seems to have been more anxious to oblige Mr. Huq than to do his duty. He ought to have prevented all attempts at interference with the Magistracy under his control. In my view he is not fit to exercise supervision over judicial officers and he should be transferred to some other branch of the public service where plasticity may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confidence that it was seen to be done. The trial must therefore be set aside. Regarding the question whether the accused can now be put upon his trial without the sanction of the Local Government under Section 197, Criminal P.C. I have had the advantage of seeing the judgment which my brother Lodge J, is about to deliver. As pointed out by him, the trial was not one which was held without jurisdiction, and it is therefore permissible to consider the evidence for purposes ancillary to the trial. One such purpose affects the question whether Section 197, Criminal P.C. applies to the facts disclosed. The evidence now before us makes it plain that it does. I agree with my learned brother that the offence which the accused was charged with committing was one alleged to have been committed by him while acting or purporting to act in the discharge of his official duty as a police officer within the meaning of Section 197, Criminal P.C. As regards Cr. Revn. Case No. 706 of 1943, Emperor v. Sadhu Majhi and Ors., here also I agree with my Lord the Chief Justice, that the trial was held in an atmosphere tainted by extra-judicial influences, and that the finding of law recorded by the trying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her lines in the judgment: The accused Kumar Singh Chajjor is a Commissioner at Jiaganj Azimganj Municipality. He is a member of the Lalbagh Special D. Section Board. He is also a member of the Jiaganj H.E. School. He is a respectable gentleman.... Before taking the rice the accused said that it was the order of the Sub-Divisional Officer not to remove rice without his permission, and that they would take it to the Thana and deposit it there. It is in evidence of both the complainant and his karmachari that the accused Gopi Souragi told them after the occurrence that all the rice should be taken to him in the morning and that he would pay off the price. Gopi Souragi is a merchant at Jiaganj. P.Ws. 7 and 8, the cartmen, stated that before taking away the rice, the accused said that they would not allow removal of rice from Jiaganj and that they would purchase it. 34. Later on the learned Magistrate makes the following observation: So it is evident from all these facts that the accused did not intend to take dishonestly the rice when they removed it. Their intention was to keep the rice within their town and to pay off the price or to deposit the rice at the Thana as desi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Carden Noad, counsel for Mr. Pollard reminded me that it was nearly ten years since I had been in the same station with Mr. Pollard and that at that time Mr. Pollard was a very junior police officer whereas I was even then a fairly senior Judge. I was stationed in Mymensingh at that time and though Mr. Pollard and I were both members of a very small European community in the station and met from time to time, there was no friendship between us. I left Mymensingh in 1934 and to the beat of my recollection I have not spoken to Mr. Pollard since. When these facts were revealed in Court, Mr. Talukdar, advocate for the complainant in the Pollard case, assured me that his client would be very glad if I were one of the Judges who should hear the rule. Mr. Carden Noad, counsel for Mr. Pollard, gave me the same assurance. In view of these assurances and in view of the fact that there had not in fact been any friendship between Mr. Pollard and myself I contented myself with placing all the facts before my Lord the Chief Justice and leaving the matter in his hands. 37. The material questions for consideration in the Pollard case are two: (1) Was the Court entitled to take cognizance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officers, and another of them was also a Government servant of another department. The learned Judge discarded the evidence of these witnesses on the ground that they were partisans. The learned Judge however omitted to remark on the facts that the four prosecution eye-witnesses were all students, that the arrested persons were students arrested for a political crime, that the demonstrating mob outside the compound was composed largely of students, and that though the complainant immediately after the occurrence took the names of shop-keepers and others as eye-witnesses, he selected only students to give evidence as such. In my opinion the learned Sessions Judge had no more justification for regarding the defence witnesses as partisans than for regarding the prosecution witnesses in that light. 39. The learned Sessions Judge noted that one defence witness said that cries of maro maro came from the mob, and he rejected the evidence of this witness on the ground that he was plus royaliste que le roi . One of the prosecution witnesses went further than the complainant and said that Mr. Pollard shouted nonsense, kick him out . But being a prosecution witness the criticism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kicking him. The complainant has never suggested that Mr. Pollard had any private grudge against him or was wreaking any private vengeance. Indeed, the complainant's clear case is that Mr. Pollard, as a policeman, resented the complainant's insistence on making representations about the arrested persons, and put an end to those insistent representations by an unprovoked and un-warranted assault. It seems to me clear that however unjustified Mr. Pollard's conduct may have been, there can be no doubt that he was not acting in any private capacity but was acting in discharge of his official duties. The argument before us was that it was not Mr. Pollard's duty to assault the complainant, and therefore Mr. Pollard was not acting in discharge of his duty when he assaulted him. I am unable to accept this view. This argument seems to me to confuse Section 197, Criminal P.C. with Section 79, Penal Code. Section 197, Criminal P.C. bars a prosecution in respect of an offence and therefore applies when an offence has been committed. That is to say, it applies when the public officer does something more than his duty-some-thing which is not his duty - provided that he does it wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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