QUEEN Vs. MAHIMA CHANDRA CHUCKERBUTTY

JUDGEMENT

(1.) In this case one Mahima Chandra Chuckerbutty was charged before the Cantonment Magistrate of Dum Dum with criminal trespass. There were several other persons also charged with the same offence. These parties were convicted, and the Magistrate, considering that Mahima Chandra Chuckerbutty was the principal offender, sentenced him to rigorous imprisonment for one month, and the other parties concerned to less periods of imprisonment. Against these sentences, under section 411 of the Code of Criminal Procedure, no appeal could lie. Mahima Chandra Chuckerbutty, accordingly, presented a petition to the Sessions Court of the 24-Pergunnas, praying that his case might be sent up for revision to the High Court, and the Sessions Judge accordingly referred the case to this Court by his letter No. 103 dated the 11th of December last. The substance of the Judge's letter was that be found no such irregularity in the proceedings as would necessitate a reference to the High Court, and that although he considered the punishment awarded excessive! that, in his opinion, would not justify him in recommending a revision of the proceedings. But," he said, the appellant has set forth in his "petition various facts with reference to which he alleges that the "Cantonment Magistrate, actuated by a personal feeling, has treated him with great and unnecessary severity and injustice. This allegation, so far as the facts are concerned, is borne out by the record; and I think the excessive bail demanded by the Magistrate, and the subsequent detention of the appellant on a charge of this petty nature, is deserving of censure, and in the view of this treatment it appears to me chat the High Court may be of opinion that the imprisonment which the defendant has already suffered is sufficient for the offence of which he has been convicted." Now it appeared to me, and also to Mr. Justice Markby, that this was a recommendation of the Judge on which we could not possibly act. The Judge was of opinion that no such irregularity had taken place in the proceedings as to warrant an interference by this Court by way of revision; but on a consideration of certain allegations of misconduct against the Joint Magistrate, be proposed to us to take such conduct into consideration, and upon that ground to mitigate the sentence passed upon the petitioner. This, as we intimated, on a former occasion, it was impossible for us to do, because, in the first place, it would be impossible for us to make any order on such allegations of misconduct without hearing what the Joint Magistrate had to say by way of explanation or defence; and, in the next place, such acts of misconduct, if made out, might be ground for the Lieutenant Governor, or other proper authority, making such order as might be required in regard to the Joint Magistrate, but would not be ground for our reversing a conviction legally arrived at. But the vakeel, who appeared for the petitioner in this Court, informed us that he was prepared to make a substantial application to the Court, and to show ground upon which the Court ought to interfere by way of revision, and set aside the conviction.

(2.) Accordingly we have heard him this morning. He has stated to us two grounds on which his application was to proceed. The first of these is, that the Magistrate has irregularly and illegally examined the defendant, or the accused person, in this case, although, as the trial before the Magistrate was one under the 15th Chapter of the Code of Criminal Procedure, the law does not allow any such examination. He has pointed out, and I think, correctly, that a Magistrate holding a preliminary investigation under the 12th Chapter of the Code, and a Magistrate holding a trial of an offence within his jurisdiction, under the 14th Chapter of the Code, are distinctly empowered by sections 202 and 250 to put questions to the accused and to examine him as they may consider necessary, and the Court of Session has similar power in regard to persons on trial before that Court; but the Procedure Code The omission is supplied by Act VIII of 1869, section 262-A makes no such provisions in respect of parties under trial under the 15th Chapter.

(3.) It is not easy to say, owing to the mode in which the examination of the accused has been recorded, to what extent this examination was carried, nor, perhaps, is it easy to say how far he has been prejudiced by such examination. But I think it unnecessary to give any positive opinion upon this point, inasmuch as the nest ground on which the application proceeds is in my opinion sufficient to enable us to dispose of this case. That ground is that set forth in the petition to the Court of Session, namely, that when the petitioner was under trial, the Magistrate, upon a witness of his, named Tiluck Singh, being tendered for examination, refused to examine that witness, or put him upon his oath, but merely put certain questions in an informal way to the witness, and deciding that the evidence he was likely to give was not material, refused to proceed further, or to examine him as a witness. It is quite manifest that such a refusal on the part of the Magistrate was altogether irregular, and was likely to prejudice the prisoner in a very serious degree. That the Magistrate did so, we are assured not merely by the affidavit annexed to a previous petition presented to this Court which came before the Chief Justice and Mr. Justice Mitter upon an application to remove the case daring trial to another Magistrate's Court, but is also further stated by the vakeel himself, who is before us to-day, and who was present in Court during the proceedings before the Magistrate.