Decided on August 28,1950

Chimansingh Balbhadrasingh Appellant
STATE Respondents

Referred Judgements :-



Dixit, J. - (1.)THIS is an application, under S. 526, Criminal P.C. for the transfer of an enquiry, which, it is said, is being made by Mr. Ghoshal as a special Magistrate, to any other Court of competent jurisdiction.
(2.)IN his application the petitioner alleges that during the course of firing which took place near the Secretariate building, Lashkar, on the afternoon of 9 -8 -1950, amongst the students who were injured was a nephew of the petitioner and that he subsequently succumbed to the injuries; that on 13 -8 -1950 the Madhya Bharat Government by Notifn. No 207 dated 13 -8 -1950, published in the Gazette of the same date appointed Mr. U.K. Ghoshal, I. C. S. as :
Special Magistrate for a period of 15 clays with powers of a Magistrate of the First Class and jurisdiction over the Municipal limits of the cities of Lashkar, Morar and Gwalior for the purpose of conducting an inquiry into the firing incident in the Moti Mahal area on 9 -8 -1950.

and that Mr. Ghoshal has been since then holding the enquiry sitting in one of the rooms of the building of this Court, The applicant further states that on 17 -8 -1950 he presented an application to Mr. Ghoshal expressing his desire to lead evidence before him and to be represented by a counsel in the inquiry, but as yet no orders seem to have been passed on that application. It is alleged that as Mr. Ghoshal is holding that inquiry in camera and as the persons against whom accusations have bees made in connection with the firing incident including Police Officers, the petitioner apprehends that there would be no fair and impartial inquiry. The petitioner claims that as a party interested in the inquiry he has a right to file this petition.

When this petition came up for hearing on 23.8 -1950, Mr. Shivadyal, Dy. Government Advocate prayed for time on the ground that in this case the Advocate -General would appear for the State. Mr. Shiva Dayal further stated that he was not in a position to make any statement as to either the nature of the inquiry or the capacity in which Mr. Ghoshal was holding inquiry. A copy of the petition was, therefore, directed to be sent to Mr. Ghoshal enquiring of him the authority under, and the capacity in which he was holding the inquiry, the nature and purpose of the inquiry, and the procedure he was following in the inquiry.

(3.)IN his dear and helpful reply Mr. Ghoshal has drawn our attention to a Notification of the Ministry of the Home Affairs, Government of India, placing his services temporarily at the disposal of the Government of Madhya Bharat with effect from the afternoon of 12 -8. 1950, and to a resolution of the Madhya Bharat Government published under the Cabinet department No. 886 -c -iii -1950 in the Gazette of 12 -8 -1950 appointing him as a Spatial Inquiry Officer for holding a preliminary inquiry into the incidents which culminated in the firing by the police on 9.8 -1950 and making a report thereof to the Government. Mr. Ghoshal further states that he is holding the inquiry in his administrative capacity and although the Government has invested him with the powers of a Magistrate of First Glass, he has not so far exercised any such powers under any of the provisions of the Criminal Procedure Code. He says:
The purpose and the object of the inquiry is to ascertain facts so far as they are capable of being ascertained on the basis of statements given before me by persons who claim to have personal knowledge of the incidents that culminated in the firing on 9 -8 -1950, and to make my report to the Government to enable them to decide what further action was necessary in consequence of the executive inquiry made by me.........It is submitted that the inquiry made by me, as contemplated by the Government resolution, is not in terms of any provisions of the Criminal Procedure Code and in no sense of the terms have I functioned as a Court conducting an inquiry under the Criminal Procedure Code. On the other hand, I have to make a report to the Government in respect of the facts found by me. It is for the Information of the Government that I have to find, to the best of my ability and within the limitation of the information I succeed in collecting facts.

Mr. Ghoshal has also given the details of the procedure that is being followed by him. He states that the statement that a person makes to him is preceded by a solemn affirmation but that if a particular person declines to make a statement on solemn affirmation such affirmation is waived and his signature is not taken on the record. As to foe statement of the petitioner that no orders appear to have been passed on his application dated 17 -8 -1950, Mr. Ghoshal has said that orders were passed in the application on 20 -8 -1950 in terms of what he has stated in his reply.


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