RONALD WOOD MATHAMS versus STATE OF WEST BENGAL.

RONALD WOOD MATHAMS

v. STATE OF WEST BENGAL.

(With connected Appeals)

[MEHR CHAND MAHAJAN C.J., s. R. DAS, BHAGWATI, JAGANNADHADAS and VENKATARAMA AYYAR JJ.]

Code of Criminal Procedure (Act V of 1898), s. 257-Absence of opportunity to produce defence evidence-Effect of-Court's duty in this respect.

If for no fault of the accused reasonable opportunity has not been given to him to adduce his evidence under the imperative provisions of s. 257 of the Code of Criminal Procedure, 1898, there is no fair trial ·and the accused cannot be convicted, even though the prosecution evidence by itself may tend to establish strong case against him.

Rules of procedure designed to ensure justice must be scru· pulously observed and Courts should be jealous in seeing that there is no breach of them.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 9, 13, 14 and 15 of 1952.

Appeal on transfer after grant of Special Leave by Privy Council on the 13th November, 1947, from the Judgment and Order dated the 14th July, 1947, of the High Court of Judicature at Calcutta in Criminal Appeal No. 350 of 1946 and Appeals under article 134 (l)(c) of the Constitution of India from the Judgment and Order dated the 6th September, 1951, of the High Court of Judicature at Calcutta in Criminal Appeals Nos. 340, 341 and 351 of 1946 and Government Appeal No. 19 of 1946.

N. C. Chakravarty, A. K. Mukheriea and Sukumar Ghose for the appellant in Cr. A. No. 9.

A. K. Basu, ( Ganpa:t Rai, with him) for the appel-lant in Cr. A. No. 13.

A. K. Dutt and Ganpat Rai for the appellant m Cr. A. No. 14.

· Sukumar Ghose for the appellant in Cr. A. No. 15.

B. Sen, A. M. Chatterii and P. K. Bose for the respondents in all the appeals.

1954. April 22. The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.-These are appeals against the judgments of the High Court of Calcutta convicting the appellants on charges of conspiracy to cheat the Government and of bribery. The facts, so far as they are material, may be briefly stated. The appellant, S. K. Dutt, carried on business as building contractor under the name and style of British India Construction Company. This firm had branch at Asansol which was, at the material dates, in charge of the appellant, J. K. Bose. In May, 1942, the military took up cons-truction of dumps and roads in this area, and the appellant, R. W. Mathams, who was the Garrison Engineer at Asansol, was put in charge of it, and the ·appellant, P. C. Ghose, was functioning as overseer under him. On or about 10th May, 1942, an order was placed with S. K. Dutt for the construction of dumps at place called Burnpur near. Asansol. The works were executed in June and July 1942, and sums amounting to Rs. 1,74,000 were paid to S. K. Dutt on account therefor. The case for the prosecution is that this amount was in excess of what was due to him for works actually done, by about Rs. 56,000, and that with view to avoid the refund of this excess, the appellants entered into conspiracy, under which S. K. Dutt was to prefer claim for construction of roads purported to have been carried out in execution of an order which R. W. Mathams was to issue; P. C. Ghose was to measure the road so claimed to have been constructed, and the bill was to be passed for an amount exceeding what had actually been paid. In accordance with this scheme, S. K. Dutt wrote Exhibit 19 on 28th January, 1943, claiming payment for "additional work within the store dump· area" ; R. W. Mathams passed an order bearing date 7th July, 1942, Exhibit 10, placing an order with S. K. Dutt for the construction of roads ; P. C. Ghose prepared the final bill, Exhibit 6, for · Rs. 1,89,458-14-0 on 15th. March, 1943, and the same was passed by R. W. Mathams. It is stated for the prosecution that the ·roads ·alleged to have been cons-: tructed by the appellant; S. K. Dutt, were, in fact,

Ron"aid Wood Mathams

. Stat•· of West Bengal. V enkatarama Ayyar J.

•95~ ·Ronald 'Wood Matkams - 'V. State of [1]West Bengal. -· Venkataramo Ayyarj.

[1955']'

constmoted by the military, .and .that the order of R. W. Math.ams bearing date 7th July, 1942, was,. ih .fact, .brought .into existence sometime in March, 19.43. It .is further stated for the prosecution that as considera~ tion for passing the above bill, bribe of Rs. 30,000 was agreed to be paid to · R. W. Math.ams and to P. C. Ghose, that S. K. Dutf sent that amount by, cheque to J. K. Bose on 16th. March, 1943, apd that on 17th March, 1943, R. W. Math.ams was paid Rs. 18,000 and P. C. Ghose Rs. 12,000 as illegal gratification. The appellants were accordingly charged with conspiracy to cheat the Government and bribery.

The appellants denied the conspiracy. They stated that the roads had, in fact, been constructed by S. K. Dutt. With reference to the cheque for Rs. 30,000, the case of S. K. Dutt and P. C. Ghose was .that the arnonl'lt was required for payment to sub-contractors, who had constructed the roads under S. K. Dutt, and .that it was, in fact, utilised for that purpose. They pr.oduced Exhibit 27 series, which are receipts purport-ing to have been signed by the several sub-contractors. The Special Tribunal wruch tried the case, delivered its judgment on 9th May, 1946, acquitting the appel-lants on the charge of conspiracy but convicting them for the offence .of bribery. Appeals against this judg-ment were taken to the High Court of Calcutta by the appellants against their conviction ·On the charge of bribery and by the Government against the acquittal on the charge of conspiracy. By their judgment dated 14th July, 1947, the learned Judges (Clough and Ellis JJ.) dismissed the appeals of the appellants, and allowed that of the · Government. In ·the result, the appellants stood convicted on the charges both of conspiracy and bribery. R. W. Math.ams applied to the Privy Council for special leave to appeal, and and .by an order dated 13th November, 1947, the appeal was admitted only on the question whether the prosecution was bad for· want of sanction under section 197 of the Criminal Procedure Code. The appellants, S. K. Dutt, J. K. Bose and P. C. Ghose, appealed to the federal Court under certificate · under section 205 of the Government of

S.C.R. SUPREME COURT REPORTS

India Act, and as -rhe order passed in their appeal forms the foundation of the argument in the present appeals, it becomes necessary to refer to it in some detail.

One of the grounds argued by the appellants in the Federal Court was that the requirements of section 257 of the Criminal Procedure Code had not been complied with, and that there was accordingly no fair trial. The facts on which this objection was based are these : The complaint was instituted on 7th June, 1945. The exa-mination of witnesses on the side of the prosecution commenced on 6th September, 1945, and it was con-cluded after undergoing several adjournments on 29th March, 1946. On 27th March, 1946, the appellant, J. K. Bose, filed list of 15 witnesses to be examined for the defence. Most of them were persons who are -. alleged to have given the receipts, Exhibit 27 series, acknowledging payment of money for construction of works done by them. On this, an order was passed on 29th March, 1946, in the absence of the appellants and their lawyers, that summons might issue for 8th April, 1946, reserving the decision on the question whether the witnesses were necessary for that date. Summons was not sent in the manner prescribed by sections 68 and 69 of the Code but by ordinary post. When the case was taken up on 8th April, 1946, it was found that two of the envelopes had returned from the Dead Letter Office, and as to the rest, there was nothing to show what had happened to them. In this situation:. the Tribunal passed an order that no further process would issue, and the case was then decided on the evi-dence on record, and the appellants convicted on the .. charge of bribery.

On these facts, it was contended before the Federal Court that the procedure adopted by the Tribunal was in contravention of section 257 of the Code, . and amounted to serious irregularity. In upholding this objection, the Court observed that section 257 was imperative in its terms, that process could not be refused except for the reasons mentioned therein, that ; no such reasons existed, and that the order of the Tri-. - bunal, dated 8th April, 1946, refusing to issue procesa was accordingly illegal. It was further observed that 15-86 S. C. India/59

Ronald Wood Mathams v. State of West Bengal.

V enkataramo .dY.)'ar ],

1954 'Jlonald Wood ·Mathams ·'V· .St"at.e of Wist .&igiil. ·.Vmkatcirama ~)'llr J·

the .witnesses ·cited would be .material, because their evidence; if accepted, would establish that Exhibit 27 series were genuine, .and that .this would militate against the case of the prosecution in respect of both the .charges .. of conspiracy and bribery. The Court accorillngly set aside . the convictions, and directed .that .the appeal should .be re-heard "after giving reasona-ble oppor.tunit}' to the .appellant No. 2 (J. K. Bose) te take such steps as he may be entitled to take in law for enforcing the attendance of the witnesses mentioned in .the list .of .the 27th March, and after considering the evidence of such of these witnesses as may appear be-fore the Court."

This judgment was passed on 23rd April, 1948. Whm the matter went back to the High :Court .of Calcutta in pursuance -0£ this judgment, an ·order was passed by that Cour.t on 2nd August, 1948, adjourning the hearing of the .appeals till the disposal .of the appeal of R. W .. Mathams by the Privy Council. Then came .the Independence of India, and the appeal of R. W. Mathams was eventually transferred from the P!'iyV .Council to ithis Court for disposal. .As information ·concerning the exact position of the appeal .of R. W. :Mat.barns ·was for csorrie time lacking, ·and as the pros-pect of .that appeal being :heard appeared distant, the High ·Court passed :an order. on 9th April, il951, d1at the ~emanded appeals w.ould be 1taken up for hearing on Hth June, 1951, lthat 1the appellants should take the ;necessary ~teps for examination uf the witnesses men-tioned ·in the [ist, dated 21'.th March, · il.946, and ·that the office :should take steps to .secure the attendance of those witnesses, except one who was in E11st Pakistan. ,I The list :was -acco~dingly .filed .on 8th May, 19'51. There-~ in, it :was stated tihat .out of lthe 15 persons whose names :were mentioned m .the list, idated 27th March, 1946, .it' \Was possible to get .the addr.ess of only six per-S!lllll, :and ,that as for the .rest, it was not possible -to trace .their ;whereabouts, as the¥ had mostly migrated t!l Asans0l at .the· .time when .the works were being exe-·CU'iied .. and .,had since :left that ,plac.e. Out .of the six persons -.yhose . addresses were give11, R ~; Mukherjee aad R. K •. Paul, ·. were· s~r.ved :anq ·examined .in .Court.

S.C.R. SUPREME COURT REPORTS

third witness was given up, as he . was handwrit-ing expert. The fourth witness Liakat Hossain, had migrated to East Pakistan, and no process could be issued against him. Another witness, Sanichar Mistry, had died in the hospital As :regards the sixth witness, Sashinath De, the endor.sement on the summons was that he .had :left the place, and that it was not known to which place he had gone. The learned Judges who heard the appeai on :remand held by their judgment, dated 6th September, 1951, that on the evidence both the "Charges of conspiracy and bribery had been estab-lished, and convicted the appellants, S. K. Dutt, J. K. Bose .and P. C. Ghose, under the appropriate sections. The matter comes before us on special leave under certificate of the High Court under article 134(c) of the Constitution.

"' The argument in support -0f these appeals is that the trial -0f the appellants had been vitiated by reason of the fact that -they had no reasonable opportunity to examine their witnesses, and that their convictions were acc<:>rdingly bad. We think that this complaint is well-founded. By its judgment, dated 23rd April, 1948, the Federal Court decided that the order of the ..,. Tribunal, dated 8th April, 1946, declining to issue process for the witnesses mentioned in the list, dated 27th March, 1946, was in contravention of section 257 of the Criminal Procedure Code, that the evidence of those witnesses would be material for refutation of the charges of both -conspiracy and -bribery, and that accordingly the appellants should be granted an oppor-tunity to examine those witnesses. On this order, the /'. only question that has to be decided is whether the " appellants got such an opportunity when the appeal was re-heard in pursuance of the order of remand. The important point t-0 be noted is that by reason of the order of the High Court, dated 2nd August, 1948, the appeal was not taken up for hearing immediately as it ought to have been, and that it was only on 8th May, 1951, that it was possible for the appellants to take . .steps in the matter. But by that time, the situation ,i._ " :had undergone radical change. In their application, the appellants stated· that. the whereabouts of most of

Ronald Wood Mathams -v. State af W <.rt · !Jengal.

V:enkatarama ~yyarJ.

'9,54. Ronald Wood Mathams Stat1 . of "· West :Be~gal; Yankatarama l!J.)'ar J'

lZZ· SUPREME COURT REPORTS

the witnesses could not be traced, and this is not to be wondered at. Burnpur, where the works had to be executed, is petty township situated in corner of. the State, and it sprang into prominence only owing to military activities. Contractors and sub-contractors flocked to that place from all sides for executing the military works, and ther.e is nothing improbable in their having left the place when the situation changed, as it did on the conclusion of the war by the end of 1945. And there arose further complication. In 1947, two Dominions came into being as result of the· Indian Independence Act, and there was partition of Bengal. It is not unlikely that some of these contrac-tors belonged to East Pakistan or had settled there.

That the list of witnesses given on 27th March, 1946, was not all fictitious is borne out by the fact that two ~ of them actually gave evidence at the re-hearing and third had died in the hospital. When some of the witnesses mentioned in the list are proved to be real persons, there are no materials on which it can be affirmed that the others are fictitious persons. Indeed, the evidence of the two witnesses, Mukherjee and Paul, is that they had seen some of those sub-contractors whose names appear in Exhibit 27 series, actually at ~ work there. The learned Judges have rejected their evidence on the ground that they are not men of status ; but on the question whether the appellants had made payments to the sub-contractors under Ex-hibit 27 series, the best evidence can only be of those persons. It may be that the two witnesses are not speak-ing the truth when they say that they saw the other persons mentioned in the list working on the roads, _r and it is possible that those persons are fictitious. But · it is equally possible that they are real persons, whose whereabouts could not be traced in the exceptional circumstances which had intervened. As admittedly three of them are real, it would be unsafe to act on the view that the others must be fictitious, and if they are re~l persons who could not be examined for no fault of the appellants, grave injustice would result in the accu-. sed being condemned without the evidence of these "-J witnesses having been taken. For this situation, the

SUPREME ·COURT -REPORTS

appellants are not to blame. That was the result of the erroneous order passed by. the _ Tribunal on 8th April, 1946, refusing to issue process and the order of ~he High Court, dated 2nd August, 1948, adjourning the appeal, till the disposal of the appeal of R. W. Mathams.

In coming to the conclusion that the guilt of the ~ appellants had been established, the learned Judges were greatly influenced by the correspondence relating to the passing of the bill, - in particular the letter of S. K. Dutt, dated 23rd January, 1943, Exhibit 18, by the long interval between the completion of the work which was in July, 1942, and the alleged payments under Exhibit 27 series which were after 17th March, 1943, and by various other circumstances, which pro-"' babilised the case for the prosecution. It must be conceded that the evidence on record tends to esta-blish strong case against the appellants. But then, that is case which they are entitled to rebut, and if, as was held by the Federal Court, Exhibit 27 series would furnish good material for rebutting that case, the Court, by declining to issue process for the examination of the witnesses connected with those -·Y documents, has deprived the appellants of an oppor-tunity of rebutting it. Whatever one may think of the merits of the appellants' contention, they .cannot be convicted without an opportunity_ being given to them to present their evidence, and that having been denied· to them, there has been no fair trial, and the conviction of the appellants, S. K. Dutt, J. K. Bose and P. C.. Ghose, cannot stand. The result may be >-\ unfortunate. But it is essential that rules of procedure designed to ensure justice should be scrupulously , followed, and Courts should be jealous in seeing that . there is no breach of them. The appeals will be . allowed, and the appellants acquitted.

Then there remains the appeal of R. W. Mathams. It has been already stated that by an order dated 13th :November, 1947, the Privy Council gave him special ). ~ : leave to appeal, limited to the question whether the · proceedings were bad for want of sanction under sec-tion 197 of the -Criminal Procedure Code. By further

Ronald Wood Mathams • v.

State of West Bengal.

V enkatarama Ayyar -T'.

" " 224 SUPREME COURT REPORTS [!955~ r95"4 o~der dated 5tli August, 1948, the "Privy council Rohald.. WO;d enlarged the scope of the appeal by permitting the M'atnams appellant to raise the contention that there had been v. State Of Wtst' contravention of section 257 of the Criminal Pro-Bing al: cedure Code; These are the two points that arise for Y tnkatarama determination in his appeal. The question whetller l!yyitr Jc sanction under sei;tion 197 wa:s necessary for instituting proceedings against the appellant on charges of conspi-racy and of bribery; is now concluded by the decisions of the Judicial Committee in H. H. B. Gill v. The King(') and Phanindra Chandra Neogy v. The King( [2 ])'. and" must be answered in the negative. The question whether there was contravention of section 257 of the Criminal Procedure Code and denial or fair trial must, for the reasons" already given, be answered in the affirmative, and the convictionc of the appellant set aside on that ground. His appeal will also be allowed, and there will be an order of acquittal in his favour~

Appeal allowed.

1954 DHIRENDRA KUMAR MANDAL April 20. v; THE SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS TO THE GOVERNMENT OF WEST BENGAL, AND ANOTHER. " ~MEHR CHAND MAHAJAN C.J., MuKHERJEA, VMAN BosE BHAGWATI and VENKATARAMA AYYAR JJ.1 Constitution of India, Art. 14--Scope and construction of-Meanin'g. of reasonable classification-C'rimina/" Procedure Code (A'ct V of 1898), ss. 269(1), 536-Notification under s. 269(1)-Validity of-Denial of the right to' be' tried by jury lo certai'n individuals-Right retained· in t.he case of other indivi.duals committing the same or .. si'-rJ:iL:zr offetJces-D~fect i'n tri'al-Wheth-er .cured· bys .. 536.