N.C.TALUKDAR,J. - (1.) THIS Rule is at the instance of Sri Ajay Kumar Mukherji, now the Chief Minister of West Bengal, against an order dated the 12th December, 1970 passed by Sri S.C. Talukdar, Chief Presidency Magistrate, Calcutta in case No. C/960 of 1970 issuing summons for the production of the accounts and the minutes of the Bangla Congress for 1969 and for appearance to give evidence as a witness for the defence on 28 -12 -1970 and also another order dated the 9th January, 1971 passed by Sri H. S. Barari, Acting Chief Presidency Magistrate, Calcutta in the same proceedings directing the petitioner to produce the accounts, receipts and vouchers and minute books as referred to therein while deferring the consideration of his examination as a defence witness after the 15th March, 1971.
(2.) THE facts leading on to the Rule can be put in a short compass. A petition of complaint was filed in the court of the Chief Presidency Magistrate, Calcutta by the complainant opposite -party No. 2, Sri Sushil Kumar Dhara, against the accused opposite -party No. 3 Sri Hiren Basu, Editor and Publisher of the 'Darpan' a Bengali News Weekly, and Mohini Mohan Roy Choudhury, the proprietor of Modern India Press and the printer of the 'Darpan' Under Section 500 of the Indian Penal Code alleging inter alia that by publishing a report in the said Weekly on the 5th December, 1969 the accused persons committed an offence Under Sections 501 and 502, IPC The learned Chief Presidency Magistrate, Calcutta, examined the complainant and issued summons upon the accused persons Under Section 500. IPC The case proceeded thereafter in the court of the learned Chief Presidency Magistrate, Calcutta. Four witnesses were examined on behalf of the prosecution and a charge was framed against the accused opposite -party No. 3, Sri Hiren Basu on the 6th October, 1970 Under Section 500, IPC The accused pleaded not guilty and witnesses were cross -examined. On 7 -12 -1970 the learned Chief Presidency Magistrate, Calcutta adjourned the case to the 28th December, 1970 for the examination of the accused Under Section 342, Criminal P.C. On the said date, the complainant was absent by petition while the accused was present. The learned Chief Presidency Magistrate directed the records to be put up on the 9th January, 1971 for the examination of the accused Under Section 342, Criminal P.C. and for hearing of the petition, filed in court on that date regarding the summoned witnesses, Sri Ajay Kumar Mukherji. On the 9th Janaury, 1971 on hearing the learned lawyers of both the parties, Sri H. S. Barari, Acting Chief Presidency Magistrate, Calcutta directed Sri Ajay Kumar Mukherji to produce or cause to be produced through some competent person all available documents and account books relating to the Satyagraha movement by 16 -1 -1971 while ordering that the question of examining Sri Mukherji as a defence witness will be considered after the account books were produced after 15 -3 -1971 and fixing the date of examination Under Section 342, Criminal P.C. on 8 -2 -1971. These orders were impugned and form the subject -matter of the present Rule. Mr. Dilip Kumar Dutt, Advocate (with Mr. Prasanta Kumar De, Advocate) appearing in support of the Rule on behalf of the petitioner made a three -fold submission. The first two contentions of Mr. Dutt relate to procedure. He contended in the first place that the order dated the 12th December, 1970 is bad in law and improper, being in non -conformance to the mandatory provisions of Sections 255 to 257 and 342, Criminal P.C. and substantially giving effect to an amalgam order passed earlier on 7 -12 -1970. Mr. Dutt next contended on procedure that there has been also a non -conformance to the provisions of Section 94, Criminal P.C. and the order passed by the learned Chief Presidency Magistrate on the 12th December, 1970 is dehors the statute, illegal and improper. The third and last submission of Mr. Dutt is that the order dated the 9th January, 1971 passed by the learned Acting Chief Presidency Magistrate, Calcutta, is bad and improper, being in conflict with the earlier order passed by the learned Chief Presidency Magistrate and seeking to revise it substantially and is also unsustainable inasmuch as it has substantially given effect to the earlier orders dated 7 -12 -1970 and 12 -12 -1970 issuing summons on the petitioner to give evidence as a defence witness. Mr. Ajay Nath Mukherjee, Advocate, appearing on behalf of the complainant opposite -party No. 2, Sri Sushil Kumar Dhara, supported the Rule and adopted the submissions of Mr. Dilip Kumar Dutt, Advocate. Mr. Sudhir Gopal Poddar, Advocate appearing on behalf of the State, also supported the Rule and submitted that the learned Chief Presidency Magistrate, Calcutta, having proceeded in non -conformance to the mandatory provisions of the Code of Criminal Procedure, the resultant orders are bad in law and, improper. Mr. Poddar further submitted that it is just and fair that the defect in procedure should be corrected at the earliest stage. Mr. Sarojesh Mukherjee, Advocate (with Miss Bharati Sud, Advocate) appearing on behalf of the accused opposite -party No. 3, Sri Hiren Basu, joined issue. Mr. Mukherjee contended in the first place that the objection taken by Mr. Dutt to the procedure adopted during the trial is more technical than real, in view of the ultimate order passed on the 9th January, 1971 by the learned Acting Chief Presidency Magistrate, Calcutta himself deferring the question of examining the petitioner till 15 -3 -71, after the production of the account books. Mr. Mukherjee next submitted that even the amalgam order dated the 7th December, 1970 is not in any way illegal or improper, being the usual order passed in the Presidency Magistrate's Court, Calcutta. It prejudices none and the defect, even if any, is curable. Mr. Mukherjee finally contended that the impugned order did not contravene the provisions of Section 94, Criminal P.C. inasmuch as the satisfaction of the learned Chief Presidency Magistrate, Calcutta, is writ large on the face of the order and that such satisfaction being subjective,, the steps of his reason in arriving at the same, need not be given in the order.
(3.) HAVING heard the learned Advocates, appearing on behalf of the respective parties, and on going through the materials on the record, I will now proceed to determine the points raised. The first contention raised by Mr. Dilip Kumar Dutt is one of law and goes to the root of the case. The steps of Mr. Dutt's reasoning are that the provisions of Section 257 follow those of Sections 255, 256 and 342, Criminal P. C; that first of all, the charge framed shall be read and explained to the accused and his plea thereto be recorded; that when the accused claims to be tried, the witnesses named by him shall be recalled and after cross -examination and re -examination, if any, they shall be discharged; that the evidence of any remaining witness for the prosecution shall next be taken whereafter the accused shall be called upon to enter on his defence and produce evidence; and that it is only when the accused enters upon his defence and applies to the Magistrate to issue process for compelling the attendance of any witness or the production of any document that the Magistrate shall issue process. The accused was not yet examined Under Section 342, Criminal P.C. and so the stage was not reached for the examination of any defence witness. The learned Chief Presidency Magistrate, Calcutta therefore in summoning defence witness at this stage was merely putting the cart before the horse. This is a material defect in procedure and should be corrected in the first blush. It is pertinent in this context to refer to the provisions of Section 342, Criminal P .C. whereunder after the witnesses for the prosecution have been examined and before the accused is called on for his defence, the court, for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, shall 'for the purpose aforesaid, question him generally on the (case after the witnesses for the prosecution have been examined and before he is called on for his defence'. The order passed by the learned Chief Presidency Magistrate, Calcutta on the 12th December, 1970 renders the provisions of Section 342, Criminal P.C. nugatory and is accordingly bad and repugnant. The first contention of Mr. Dutt relating to procedure, therefore succeeds.;