Ajay Kumar Mukherji vs The State

N.C. Talukdar, J.—This Rule is at the instance of Sri Ajay Kumar Mukherji, now the Chief Minister of West Bengal, against an order dated December 12, 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 December 28, 1970, and also another order dated January 9, 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 March 15, 1971.

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'' u/s 500 of the Indian Penal Code, alleging inter alia that by publishing a report in the said weekly on December 5, 1969, the accused persons committed an offence under Sections 501 and 502, Indian Penal Code. The learned Chief Presidency Magistrate, Calcutta, examined the complainant and issued summons upon the accused persons u/s 500, Indian Penal Code. 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 October 6, 1970, u/s 500, Indian Penal Code. The accused pleaded not guilty and witnesses were cross-examined. On December 7, 1970, the learned Chief Presidency Magistrate, Calcutta, adjourned the case to December 28, 1970, for the examination of the accused u/s 342 of the Code of Criminal Procedure. 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 January 9, 1971, for the examination of the accused u/s 342, Code of Criminal Procedure, and for hearing of the petition filed in'' the Court on that date regarding the summoned witness Sri Ajay Kumar Mukherji, On January 9, 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 January 16, 1971, while ordering that the question of examining Sri Mukherji as a defence witness will be considered after the account books were produced after March 15, 1971, and fixing the date of examination u/s 342, Code of Criminal Procedure, on February 8, 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 December 12, 1970, is bad in law and improper, being in non-conformance to the mandatory provisions of Sections 255-257 and 342, Code of Criminal Procedure, and substantially giving effect to an amalgam order passed earlier on December 7, 1970. Mr. Dutt next contended on procedure that there has been also a nonconformance to the provisions of Section 94, Code of Criminal Procedure, and the order passed by the learned Chief Presidency Magistrate on December 12, 1970, is de hors the statute, illegal and improper. The third and last submission of Mr. Dutt is that the order dated January 9, 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 December 7, 1970 and December 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 was 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 January 9, 1971, by the learned Acting Chief Presidency Magistrate, Calcutta, himself deferring the question of examining the Petitioner till March 15, 1971, after the production of the account books. Mr. Mukherjee next submitted that even the amalgam order dated December 7, 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, Code of Criminal Procedure, 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.

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, Code of Criminal Procedure, 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 u/s 342, Code of Criminal Procedure, 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, Code of Criminal Procedure, 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 December 12, 1970, renders the provisions of Section 342, Code of Criminal Procedure, nugatory and is accordingly bad and repugnant. The first contention of Mr. Dutt relating to procedure, therefore, succeeds.

There is much force behind the second submission regarding the non-conformance to the provisions of Section 94, Code of Criminal Procedure. As has been observed before, the order dated December 12, 197p, is an amalgam order directing the Petitioner to produce certain accounts, receipts, vouchers and minutes as referred to there-in and also issuing summons on him to give evidence. The said order passed by the learned Chief Presidency Magistrate, Calcutta, is r quite a laconic one and one looks in vain thereto for ascertaining the grounds of his satisfaction or even a consideration as to why he thought it necessary or desirable for the purposes of the trial, that the documents in question should be called for. The sine qua non of an order u/s 94, Code of Criminal Procedure, is a consideration by the Court that the production of the documents concerned was desirable for the purposes of the trial and, on being satisfied in that behalf, to issue summons thereunder. A failure on the part of the Court to do so would result in a non-conformance to the provisions of Section 94, Code of Criminal Procedure. A reference in this context may be made to the case of Hussenbhoy Abdoolabhoy Lalji v. Rashid B. Vershi AIR 1941 Bom, 259 (260) (F.B). Beaumont C.J. delivering the judgment of the Court observed:

We think the true view is that when an application is made to a Court or to a Police officer in the mofussil, u/s 94, for production of documents, the Court is bound to consider whether there is a prima facie case for supposing that the documents are relevant.

I respectfully agree with the said observation and I look in vain to the impugned order for such a consideration, in the absence whereof the ultimate order passed u/s 94, Code of Criminal Procedure, is not maintainable in law. A reference again may be made to the case of Mohammad Rahim v. Emperor AIR 1936 Sin. 13 (F.B.) wherein it was held that Sections 94 and 257 are not antagonistic but interdependent. It was observed by Ferrers J.C. that u/s 94 any party to an enquiry, trial or other proceeding under the Code may at any stage apply to the Court to call for the production of a document or other thing and is entitled to its production if he satisfies the Court that such production is necessary or desirable for the purposes of such enquiry, trial or other proceeding. The order in question passed by the learned Chief Presidency Magistrate, Calcutta, on December 12, 1970, does not incorporate any such satisfaction or reason as to why summons u/s 94, Code of Criminal Procedure, was being issued and in the absence thereof the order is not in accordance with law. Mr. Mukherjee''s contention that such satisfaction is implied, is not sustainable on ultimate analysis. Satisfaction, following a consideration enjoined in Section 94, Code of Criminal Procedure, must be apparent from the body of the order which must be a talking one and an enquiry that reaches the point of hypothesis and assumptions is not an enquiry in conformance to the requirements of the statute. I, therefore, agree with the submissions of Mr. Dutt and hold that the order in question is not also in accordance with Section 94 of the Code.

The point might be approached from another standpoint, namely, a non-conformance to the procedure established by law. In the well-known case of Taylor v. Taylor (1876) 1 Ch.D. 426 (431) Jessel M.R. observed that when a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted.....

The said principles were approved of and applied by their Lordships of the Judicial Committee in the case of Nazir Ahmed v. The King-Emperor 63 LA. 372 (381-82). Lord Roche, delivering the judgment of the Judicial Committee, observed:

The rule which applies is a different and not less well-recognized rule, viz. that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.

Other methods of performance are necessarily forbidden.

A reference again may be made to a later decision wherein the Supreme Court reiterated the said principles in the case of State of Uttar Pradesh Vs. Singhara Singh and Others, . A. K. Sarkar J. (as his Lordship then was) delivering the judgment of the Court observed that the rule adopted in Taylor v. Taylor (1876) 1 Ch.D. 426 , is well-recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power is to be exercised, it necessarily prohibits the doing of the act in any other manner than which has been prescribed. The principle behind the rule is that, if this were not so, the statutory provision might as well not have been enacted.

I respectfully agree with the observations made above'' and I hold that the order passed by the learned Chief Presidency Magistrate, Calcutta, in issuing the summons on December 12, 1970, is de hors the provisions of law as enjoined in the Code and not in accordance with the procedure established by law. Such an order is bad and improper and should be set aside. For the reasons given above, the other ago orders dated December 7, 1970, and January 9, 1971, are also bad. The first two contentions of Mr. Dutt, touching procedure, accordingly succeed.

In view of my above findings, the third contention of Mr. Dutt relating to the conflicting nature of the two orders passed'' on December 12, 1970, and January 9, 1971, need not be determined. I make it quite clear, however, that I pass no observations on the merits of the cases of the respective parties.

In the result, the Rule made absolute, the impugned orders dated December 7 and 12, 1970 and January 9, 1971, are set aside ; and the case is sent back to the Court below for being tried in accord-" once with law and expeditiously by the learned Chief Presidency Magistrate, Calcutta, from the stage reached on December 7, 1970.

The records shall go down as early as possible.