Ramsakal Singh vs Emperor

Dhavle, J.—This is a reference made by the Sessions Judge of Bhagalpur, recommending that the conviction of Ramsakal Singh u/s 9(a), Census Act, 1989, by the Sub-divisional Magistrate of Banka, be set aside and a retrial ordered. The prosecution story was that Ramsakal Singh, who was the petitioner before the Sessions Judge, was appointed a supervisor for the last census and neglected to perform his duty as such and to obey Orders issued to him in accordance with the rules made under the Census Act: I am quoting this from the letter that the Sub-divisional Magistrate wrote to the District Magistrate for obtaining his sanction u/s 10 of the Act for the prosecution of Ramsakal Singh. And the material on which the Sub-divisional Magistrate wrote to the District Magistrate was a report by an assessor-punch that Ramsakal Singh had been doing no work at all for the last two months as supervisor and that the assessor-punch had been getting the work done by somebody else, together with an agreement by the Sub-Inspector that the supervisor had not come as yet and that the assessor-punch had made arrangements for his work. The Sub-Inspector asked that the supervisor be prosecuted "for the gross negligence and leaving the census work without any excuse and intimation." In all this, not a word is said about any particular occasion, on which the supervisor had failed to discharge any particular duty imposed upon him. The Sub-divisional Magistrate summoned Ramsakal Singh on hearing from the District Census Officer that the Collector had sanctioned the prosecution, and did so u/s 10, Census Act. That summons came back unserved, and when a fresh summons was issued, the proper section, viz., Section 9(a), Census Act, was mentioned but without any details of any kind whatsoever.

One would have thought that in these circumstances the Sub-divisional Magistrate would at least endeavour to do his plain duty by putting some particulars of the offence to the accused u/s 242, Criminal P.C., but he does not seem to have done so at all, notwithstanding an entry in the order sheet which runs "Examined accused. Examined 5 P. Ws. Accused convicted &c. &c." For, the only examination of the accused that one finds in the record comes after the depositions of the three prosecution witnesses, and is referred to by the Magistrate himself as the examination of the accused u/s 342. Even this examination shows that no particulars of the offence were put to the accused at all; the Magistrate simply asked the accused what his statement was, and the accused stated that he had done everything, and on the days when he was unable to attend himself, had got the work done through others. The evidence of the three witnesses called for the prosecution also does not seem to have given sufficient particulars of any particular offence at any particular time. Indeed, the learned Magistrate does not seem to have realized at any time that any particulars were necessary. In his judgment he says that:

The accused was often summoned to appear and take instructions from charge superintendent and show progress of his work. The late S.D.O. sent for the accused to appear at Katoria P.S. last December but the accused did not appear before him when S.D.O. again proceeded to Betia near his village but the accused did not appear with his papers to show progress. He was noticed for the third time when he appeared at Amarpur when he was taken to task by the late S.D.O.

How the Sub-divisional Magistrate brings this within Section 9(a) is far from clear, though we find him saying towards the end that:

As census officer (circle supervisor) lawfully required to give assistance in census work neglected to use reasonable diligence in performing the duties imposed on him and disobeyed orders of charge superintendent and late S.D.O.

The section speaks of refusing or neglecting

to use reasonable diligence in performing any duty imposed upon him or not obeying any order issued to him in accordance with this Act or any rule made thereunder.

The census work of the area in the supervisor's charge was apparently done as the accused actually produced a receipt, which the Magistrate calls a slip, equivalent to his discharge. The assessor-punch's story was that he had got the work done in default of the accused by one Narain Sahu; but Narain Sahu was not called at all to say when and why he did the work. As to disobeying orders of the Charge-Superintendent and the late S.D.O. the trying Magistrate ought to have seen that the section deals with "any order issued to him in accordance with this Act or any rule made thereunder"; and there is not a scrap of evidence on the record to show that the orders that the late S.D.O. may be supposed to have sent to the accused were such orders. Section 242, Criminal P.C., dispenses with a formal charge in summons cases, but any Magistrate of experience knows that that does not dispense with particulars of the offence for which the accused is to be dealt with. In the present case, evidence is also not directed to any such particulars. The trial is, therefore, entirely defective, and the conviction of the petitioner cannot stand.

The learned Sessions Judge has recom-mended that a re-trial should be ordered. Upon the materials before me it does not seem that that course should be adopted. We have here a Sub-divisional Magistrate moving the District Magistrate for sanction u/s 10, Census Act, to prosecute, without mentioning or even knowing any particulars, and proceeding to summon the accused on receipt not of a sanction by the District Magistrate but of an intimation by the District Census Officer'' that the District Magistrate had sanctioned the prosecution. Whether the District Magistrate had before him any particulars does not appear, but the references in the correspondence make that very unlikely. We have, therefore, in the present case a prosecution asked for without any particulars, sanctioned without any particulars, started without any particulars and ending without any particulars. I do not see why a case of this kind should be allowed to proceed any further. The result is that the reference is accepted in part and the conviction of Ramsakal Singh u/s 9(a), Census Act, is set aside, the fine, if paid, to be refunded.