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Criminal Miscellaneous Cases Nos. 81 and 87 of 1964, decided on 28th September 1964.
Ss. 556 & 526 Magistrate recording statement of person under apprehension of death but ultimately surviving‑Deemed witness and "personally interested" in prosecution‑Not competent to try case himself Transfer of case to another Court ordered.
Where a Judge is the sole Judge of the law and fact in a case tried before himself, he cannot give evidence before himself ox import matters in his judgment not stated on oath before the Court in the presence of the accused. If he does so, he makes himself a witness in the case and renders himself incompetent to try it. In no circumstances should a case be allowed to proceed in a Court where the parties may have reasonable apprehension in their minds that they would not have a fair trial. It is essential that justice must not only be done but must be seen to be done. It is true that, by reason of the Explanation appended to the provisions of section 556 of the Criminal Procedure Code, 1898, there would be no legal necessity to transfer the case to some other Magistrate even in a ease in which an enquiry is held by the Magistrate who is trying the case but there may be instances in which it would be advisable to direct a transfer.
Where, therefore, a Magistrate trying a case had recorded statement of a person who was under apprehension of death as a result of the injury inflicted on him but did not, as a matter of fact, ultimately die, it was held that the Magistrate trying the case was a witness and could be said to be personally interested in the prosecution. The case was, therefore, transferred from his Court to the Court of another Magistrate on an application moved under section 526 of the Criminal Procedure Code, 1898.
Thachroth Hydross and others (prisoners in re.) A I R 1923 Mad. 694 and Ahmad Yar Khan v. Emperor 11 Cr. L J 171 distinguished.
Nga Chit So v. The King 39 Cr. L J 117; Ghassoo v. Emperor A I R 1930 All. 737; Ghulam Rasul and others v. Crown P L D 1951 F C 62 and Mangni Lal Marwari v. Emperor A I R 1918 Pat. 373 ref.
Ss. 496 & 497 Bail‑Discretion to grant or refuse, to be exercised judicially Factors to be taken into consideration‑Court refusing bail to record reasons.
In the matter of granting or refusing bail a Court is called upon to exercise its discretion judicially. The Court in disposing of an application for bail must take into consideration the gravity of the offences alleged, the heinousness of the charge, and the possibility of absconsion and tampering with the witnesses and on these considerations prayer for bail may be refused. Where bail is refused, it is necessary that the reasons which weighed with the Court in refusing the prayer should be recorded to indicate that a discretion has been judicially exercised keeping in view the principles governing the question of granting or refusing bail. Where, therefore, the Sessions Judge rejected the prayer for bail by merely observing "the petition for bail is rejected . . . .", it was held that the order of rejection of the prayer for bail did not appear to have been made after exercising judicial discretion properly. The petitioner was, therefore, directed by the High Court to be enlarged on bail.
Khalid Saigol v. The State P L D 1962 S C 495 ref.
Ss. 496 & 497 Sessions Judge granting bail in case pending before magistrate Competent to cancel bail at subsequent stage if necessary (obiter).‑[Haji Sultan Ahmed and others v. The State 16 D L R 325 and Ahmad and others v. Crown P L D 1950 Lah. 280 overruled.]
Haji Sultan Ahmed and others v. The State 16 D L R 325 and Ahmad and others v. Crown P L D 1950 Lah. 280 overruled.
Gushtasab Khan v. The Crown P L D 1956 F C 117 rel.
A. T. Sadi for Petitioners.
Abdul Hakim, Deputy Legal Remembrancer for the State.
Date of hearing: 24th September 1964.
These two Criminal Miscellaneous Cases arise out of the same prosecution instituted against the petitioners and were, therefore, heard together and are being disposed of by this judgment. Criminal Miscellaneous Case No. 81 of 1964, relates to an application for transferring the case from the Court of Mr. B. D. Khan to that of some other Magistrate. The prayer is mainly founded on the ground that the learned Magistrate recorded a statement of one Kinu Khalifa who was under apprehension of death as a result of the injury inflicted on him but did not as a matter of fact, ultimately die. The learned Magistrate, it is claimed, had therefore, previous knowledge of the case. An application filed before the learned Sub‑Divisional Magistrate under section 528 of the Code of Criminal Procedure for transferring the case to some other Magistrate also failed. The learned Sub‑Divisional Magistrate observed:‑
"It is only an enquiry. Let the case proceed in the Court where it is proceeding."
The learned Additional District Magistrate also refused to interfere with the said order and the petitioners have moved this Court for transfer of the case.
Mr. A. T. Sadi, the learned Advocate for the petitioners submits that the Magistrate should not conduct enquiry under Chapter XVIII of the Code of Criminal Procedure. He contends that regard being had to the provisions of section 556 of the Code, the case should be transferred to some other Court. He has also placed his reliance on a Division Bench decision of the Rangoon High Court in the case of Nga Chit So v. The King (39 Cr. L J 117), Roberts, C. J., delivering the judgment of the Court observed as follows:‑
"There is one matter to which I should refer, and that is the fact that the Magistrate who recorded the dying deposition of the deceased also presided over the proceedings in the committal Court. This fact has been commented on by the learned Additional Sessions Judge, and we consider rightly so. It is wrong in our opinion, that a Magistrate who takes the dying deposition should record the evidence in the committal Court. It means that the accused is in that Court precluded from questioning the Magistrate as to what happened when the dying deposition was taken. In this case, however, no injustice was done to the appellant as his learned Advocate has quite frankly acknowledged but we refer to the matter for future guidance."
Section 556 of the Code of Criminal Procedure is in the following terms:‑
"No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case, to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself."
"Explanation.‑A Judge or Magistrate shall not be deemed a party, or personally interested, within the meaning of this Section, to or in any case by reason only that he is a Municipal Commissioner or otherwise concerned therein in a public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed, or any other place in which any other transaction material to the case is alleged to have occurred, and made an enquiry in connection with the case."
The question, therefore, is as to whether the learned Magistrate can be said to have any personal interest in the case only for the reason that he recorded what was deemed to be a dying declaration.
It is true, by reason of the Explanation appended to the provisions of section 556 of the Code, there would be no legal necessity to transfer the case to some other Magistrate even in a case in which an enquiry is held by the Magistrate who is trying the case. While laying down the above principle, Dalal, J., of the Allahabad High Court has expressed the view in the case of Ghassoo v. Emperor (A I R 1930 All. 737), that there may be instances in which it would be advisable to direct a transfer from the Court of a Magistrate who has made a local enquiry.
It has also been held in the case of Thachroth Hydross and others (prisoners in re.) (A I R 1923 Mad. 694), that the judgment of a Magistrate is not vitiated by the fact that he inspected the locus in quo and stated in his judgment of what he saw there. To the same effect is the decision in the case of Ahmad Yar Khan v. Emperor (11 Cr. L J 171). In that case it has been held that there is nothing illegal or objectionable in the Magistrate's visiting the spot for the purpose of the trial after recording what he saw and drawing inferences there from. The view expressed was that he does not thereby become a witness in the case. But in the case before us the Magistrate is a witness. The main point, however, is whether a Magistrate can be said to be personally interested in the prosecution.
Section 556 of the Code came to be considered by our Federal Court in the case of Ghulam Rasul and others v. Crown (P L D 1951 F C 62). In that case it was held that where the Legal Remembrancer having advised the Crown to file an appeal from an acquittal in a murder case was subsequently appointed a Judge of the High Court and was a member of the Bench who heard the appeal, the Bench was improperly constituted. It was further held in that case that the provisions of section 556 of the Code were violated.
In the case of Mangni Lal Marwari v. Emperor (A I R 1918 Pat. 373), Roe and Jwala Prasad, JJ., have held that where a Judge is the sole judge of the law and fact in a case tried before himself, he cannot B give evidence before himself or import matters in his judgment not stated on oath before the Court in the presence of the accused. If he does so, he makes himself a witness in the case and renders himself incompetent to try it.
On a consideration of the principles laid down in the decisions cited above, we are led to the conclusion that in no circumstances a case should be allowed to proceed in a Court where the parties may have reasonable apprehension in the minds that they would not have a fair trial. It is essential that justice must not only be done but must be seen to be done. Keeping these principles in our view, we are of the opinion that the case should be transferred from the Court of Mr. B. D. Khan.
Criminal Miscellaneous Case No. 87 of 1964, arises out of an application for bail by one of the accused petitioners Arshed Ali Mondal. The petitioner is being prosecuted along with others under various sections of the Penal Code, namely, sections 148, 149, 349, 304, 326, 325 and 379. It is claimed by Mr. A. T. Sadi that all the accused persons except the petitioner Arshed Ali Mondal have been enlarged on bail.
The impugned order by which the learned Sessions Judge refused to grant bail in respect of the petitioner, does not practically give any reason as to why the prayer for bail of this petitioner was rejected. The learned Judge merely says:‑
"The petition for bail is rejected in so far as the petitioner No. 3 is concerned."
It is really not understood on what ground this petitioner was refused bail. We are indeed reluctant to interfere with a discretion judicially exercised and probably we would not have thought of interfering with this case as well if indication about the reasons which weighed with the learned Judge in refusing the bail would have been given. Such reasons should be recorded to indicate that a discretion has been judicially exercised keeping in view the principles governing the question of granting or, refusing bail. Our Supreme Court observed as follows in the case of Khalid Saigol v. The State (P L D 1962 S C 495):‑
"We may state straightway that where a Court is called upon to exercise its judicial discretion, it will not be discharging its functions properly if it were to proceed upon any a priori assumption that in all cases where an offence punishable with death or transportation for life is alleged, bail must as a matter of course be refused, nor can there be any rule of practice upon the basis of which such a discretion can be judicially exercised, for, rarely will there be two cases in which the facts are alike."
The Supreme Court gave clear guidance in the matter in the following terms:‑
"The nature of the accusation and the heinousness of the crime alleged are, no doubt, very relevant circumstances to be taken into consideration, but by themselves they are not the only circumstances . . . . . . . . . ."
It was further observed:
"Thus where the accused person is capable of absconding or of tampering with witnesses, the maximum restraint may well be justifiably imposed."
The Court, therefore, is to take into consideration the gravity of the offences alleged, the heinousness of the charge, and the possibility of absconsion and tampering with the witnesses and on these considerations prayer for bail may be refused. Neither the learned Judge nor the trial Court seems to have taken these factors into consideration. The order of rejection of the prayer for bail does not, therefore, appear to have been made after exercising judicial discretion properly. We think we should, therefore, direct that the petitioner should be enlarged on bail. In doing so, we make it clear, that if, at a subsequent stage, it is felt that in accordance with the principles indicated above, the petitioner should be taken into custody, either the trial Court or the Court of Sessions, will be free to do so. If after granting the bail a Court thinks that it should be cancelled in the interest of justice, it can certainly be done. At one stage it was thought that if a Sessions Judge grants bail pending in a case before a Magistrate, he cannot subsequently cancel it. We would make it clear that a Sessions Judge who grants bail, may also cancel it if, on some new materials brought to his notice, he feels inclined to do so.
In the case of Haji Sultan Ahmed and others v. The State (16 D L R 325), this question was raised before me. In that case Mr. Farid Ahmed, learned Advocate for the petitioners, placed reliance on a decision of a Division Bench of the Lahore High Court consisting of Sharif and Kayani, JJ., in the case of Ahmad and others v. Crown (P L D 1950 Lah. 280). In that case it was held that a Sessions Judge cannot cancel a bail once he grants it in a case pending before a Magistrate. Mr. S. K. Bose who appeared in that case on behalf of the State conceded that the point raised by Mr. Farid Ahmed was correct. Although I maintained the order of cancellation as made by the Sessions Judge in the interest of justice, I expressed my agreement with the principle laid down in the aforesaid Division Bench decision of the Lahore High Court. It is indeed regrettable that it was not pointed out to me by the learned Advocates nor did I notice myself that the Lahore case has since been overruled by our Federal Court in the case of Gushtasab Khan v. The Crown (P L D 1956 F C 117). In that case our Federal Court has finally decided that a Court of Session granting bail to an accused person in a case pending before a Magistrate is competent to cancel the bail at a subsequent stage if necessary. Although not directly raised, we have made a reference to the question to clarify the position in law.
For the reasons stated above, we make the Rules absolute in both the cases and direct that the case be enquired into by some other Magistrate in accordance with law and the petitioner Arshed Ali Mondal be released on bail to the satisfaction of the Deputy Commissioner.
I agree.
K. B. A. Rule made absolute.
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