The Bengal Nagpur Railway Company, Ltd. vs Shaikh Makbul

Macpherson, J.—This rule was issued on an application in revision by the Bengal Nagpur Railway Company, Limited, that the Court should direct that the representative of the applicant authorised by the agent of the railway u/s 145(2) of the Indian Railways Act, 1890, has the right to conduct the prosecution in the case Crown v. Sheikh Makbul u/s 304 A of the Indian Penal Code which is pending in the Court of the Deputy Magistrate of Balasore and further should direct that the case be committed to the Sessions. At the hearing a further prayer has been made that if the case be not committed to the Sessions it be transferred to another district on the ground that the Magistrate is biassed against the applicant. All the prayers are opposed by the Crown and by the accused but after perusing the report of the Deputy Magistrate and the affidavit on behalf of the accused and hearing the Government Advocate on behalf of the Crown, I have found it unnecessary to call upon Sir Ali Imam for the accused.

The circumstances are briefly these. About 5-40 a.m. on the 9th November 1924 there was a collision at the southern level crossing of the Cuttack railway station on the Bengal Nagpur Railway between the Madras mail and a motor lorry driven by the accused which resulted in the death of two and severe injuries to one or more passengers of the motor lorry. About 6 a.m. a head constable gave information of the occurrence to the Sub-Inspector of railway police at Cuttack railway station and the latter proceeded u/s 174(c) of the Code of Criminal Procedure to hold an inquest on the persons killed and came to the conclusion that the gateman of the level crossing, a servant of the applicant, was responsible for the accident. While the Sub-Inspector was conducting this inquiry, the station master at Cuttack sent an "all concerned" message somewhere about 8 a.m. and the Superintendent of Police thereafter handed his copy to the Sub-Inspector who treated it as a first information u/s 154 of the Code of Criminal Procedure. Eventually the police sent up the accused Sheikh Makbul, the driver of the lorry, and the trial began in the Court of a Deputy Magistrate of Cuttack. The prosecution case is that the accused forced his way on to the railway by opening the western gate and injured the gateman who opposed, while the defence is that the western gate was open and, therefore, the applicant is responsible for the accident. The applicant deputed a vakil from Howrah to conduct the prosecution, but though it is alleged by the applicant that the Magistrate permitted the vakil to conduct the prosecution, the allegation is incorrect, the fact being that the Public Prosecutor was in charge of the prosecution and conducted it, and under his direction the representative of the railway took some part in examining witnesses in the absence of the Public Prosecutor. Exception was taken by the accused to the participation of the Railway vakil on the score of unfairness in his methods. The Magistrate, however, filed the petition of accused, framed a charge u/s 304 A against him and called upon him to cross examine. The accused thereupon moved the Circuit Court then in Session at Cuttack for a transfer of the case to some other district and the applicant filed a similar petition on the ground that the master of accused holds a prominent position in Orissa. The applications were heard by Ross, J., who transferred the case to Balasore and further made the following order:

"It should be noted that the conduct of the prosecution should be in the hands of the Public Prosecutor. The petitioner has taken objection to the part taken in the trial by the pleaders representing the Railway Co. The learned Govt. Pleader, however, has explained this by saying that he was in charge of the case under the orders of the District Magistrate and that the pleaders retained by the Railway Company were only acting under his instructions and during his absence. So long as this is clearly understood there is no objection to this being done but the conduct of the prosecution should be in the hands of the Public Prosecutor." The applicant makes it a grievance that this order was passed while the vakil of the railway was engaged in another Court, but it is clear from the applicant''s petition that an attempt made on behalf of the applicant to induce the learned Judge in chambers to alter the order was unsuccessful.

When the trial began at Balasore the vakil for the applicant presented a formal authorization u/s 145(2) of the Railways Act from the Agent of the railway to conduct the prosecution, but the Court refused to entertain his prayer to take the lead in view of the order of the High Court quoted above. Because of the representation made by the applicant in his application for transfer of the trial from Cuttack, the Crown had in order to secure impartiality, specially introduced a Public Prosecutor from outside Orissa to conduct the prosecution of the accused. This special Public Prosecutor conducted the case in accordance with his own ideas of what is just and proper, and while taking full advantage of assistance pressed upon him by the representatives of the railway refused to place himself unreservedly in their hands. In particular the Public Prosecutor opposed a commitment to the Sessions and declined to put questions which had only a bearing on the civil liability of the applicant in suits instituted against the latter by passengers travelling in the lorry driven by accused, a state of affairs of which the applicant unjustifiably makes a grievance.

The prosecution having examined thirty-one witnesses, the trying Magistrate expressed an intention of committing the case to the Sessions. The accused, however, claimed the right to cross-examine all the prosecution witnesses before commitment and thereupon the Magistrate, considering that, if cross-examination were to take place in his Court, it would be useless to commit, gave up the idea and framed a charge u/s 304-A for trial in his own Court.

He also declined to accede to a prayer on behalf of the applicant that an additional charge be framed u/s 124 of the Railways Act. Obviously a charge u/s 124, which punishes with fine up to Rs. 50 for the opening of a railway gate in certain circumstances was unnecessary in law so that the point has no significance and need not be further discussed. At the stage at which applicant obtained the present rule the cross-examination which had extended to nine or ten full days had just been concluded and the defence having declined to adduce evidence the case had been fixed for argument prior to judgment.

Mr. C.C. Das, who appears for the applicant, claims an under in his favour on substantially the following three grounds:

(1) That the trying Magistrate has illegally withheld permission to conduct the prosecution from the vakil appointed u/s 145(2) of the Railways Act;

(2) that the trying Magistrate has exhibited bias against the applicant; and

(3) That though the offence u/s 304-A of the Indian Penal Code is triable by a Magistrate as well as by the Court of Sessions, a higher punishment may be given by the latter.

The third submission has no weight. The maximum term of imprisonment for the offence is within the powers of punishment of the Magistrate, and if his powers in respect of fine are limited to Rs. 1,000 while those of the Sessions Court are unlimited, it is clear that in the circumstances of the case an appropriate sentence of fine would not exceed Rupees 1,000.

As regards the first point, it is clear that in view of the order of Ross, J., it was not open to the Magistrate to eliminate the Public Prosecutor and entrust the conduct of the case to the representative of the applicant. Mr. Das would draw a distinction between the vakalatnama filed by the vakil for the railway in the course of the proceedings at Cuttack, which was before Ross, J., and the subsequent mandate of the Agent u/s 145(2) of the Railways Act. But in fact no distinction exists except that the latter is more formal. In the vakalatnama the vakil is, in so many words, authorized by the Agent of the Bengal-Nagpur Railway Company to conduct the prosecution in the case against Sheikh Makbul, accused, u/s 304-A of the Indian Penal Code. The circumstances had in fact not altered and it was not open to the Magistrate to ignore the orders passed by the High Court in the case.

Accordingly the question of the position of a vakil appointed by the Agent of the Bengal-Nagpur Railway Company u/s 145(2) to conduct the prosecution in this case in preference to the Public Prosecutor does not properly arise at this stage; the point having already been decided on the same materials by this Court against the contention of the Railway Company, it being explicitly directed that the conduct of the prosecution shall be in the hands of the Public Prosecutor. The first point, therefore, fails. It is not, therefore, necessary to express a final opinion on the subject, but one may say that the indications, are strongly against the claim in that regard of the applicant. Section 145(2) only entitles a person authorized by the Agent of a railway to conduct prosecution on behalf of the railway administration; to do so without the permission of the Magistrate, which would, except for the provision, be required u/s 495 of the Code of Criminal Procedure. Prima facie, neither Section 145(2) of the Railways Act nor Section 495 of the Code of Criminal Procedure affects Section 493 of the latter enactment which deals with the right of appearance and precedence of the Public Prosecutor before any Court in which any case, of which he has charge is under trial. The Public Prosecutor has charge of the prosecution under discussion and the pleader instructed by a private person, including the Agent of a railway administration, to prosecute a case of which the Public Prosecutor is in charge shall, it is enjoined, act under the directions of the Public Prosecutor. The entire propriety of such a provision, which could hardly be better demonstrated than in the present instance, is in favour of the interpretation. Then again, I am unable, as at present advised, to accept the view that there is no force in the argument advanced by the learned Government Advocate that Section 145(2), of the Railways Act contemplates mainly, if not exclusively, prosecutions for offences under that enactment, that is to say, private prosecutions undertaken by the railway administration in which the Public Prosecutor does not appear as distinguished from public prosecutions undertaken or taken over by the State and in particular prosecutions, such as the present, under the Indian Penal Code.

Before dealing with the allegation of bias on the part of the Magistrate, it is expedient to indicate more fully than has been done above, what the case for the prosecution and the case for the defence is. At the level crossing there are drop-gates and the western and the eastern gates are about 134 feet apart. Two lines of railway are within the crossing, the westmost being a goods line passing close to the western gate and the other being the main line passing close to the eastern gate. The prosecution case is that some one opened the western gate which had been closed by the gateman because the Madras Mail was about to pass, and the accused drove his lorry towards the eastern gate knocking down the gateman who tried to stop him. The defence case is that the western gate was standing open and that the accused drove his lorry through it, it being the rule that the crossing is open unless both gates are closed. Obviously, therefore, the railway is at least as deeply concerned with its prospective civil liability, if the gate was in fact open, as with the criminal liability of the accused, and the point of view of its representative is materially different from that of a Public Prosecutor and from that of a judge presiding in the Court. It is clear that the former addressed himself amid considerable difficulties created by the representative of the applicant to securing impartial justice, therein acting in accordance with the best traditions of his office. It is right in the circumstances to quote here with approval the view of the Magistrate: "He has conducted the case very ably and impartially, and with perfect fairness to both parties. He has not identified himself wholly with the railway version of the case, and so the railway pleaders are dissatisfied with him. The railway company is an interested party in this case and so he should not ally himself with them."

The allegation of bias on which a commitment to the Sessions or a transfer to another Court was claimed, was supported by four instances, two of which appear in each of the two petitions of the applicant. They are: (a) that the Magistrate did not grant the conduct of the prosecution to the applicant''s representative; (2) that the case was not committed to the Sessions in accordance with the original intention of the Magistrate; (3) that, on 25th June the Magistrate asked the police Sub-Inspector, before he went into the witness-box for cross-examination: "Why did you not send up the gateman?" and (4) that on the 26th June, when the representative of the railway was moving a petition for the production of a letter alleged to have been sent on the day of occurrence by the Assistant Station Master to the Civil Surgeon of Cuttack requesting the latter to examine the injuries of the gateman, the Magistrate made a remark which showed that he was prejudiced against the applicant and such as, it is suggested, he would not, if he had not been influenced by high official opinion, have expressed when the matter was sub judice.

The first instance has already been discussed and it has been determined that the Magistrate''s action was entirely proper, the order of the High Court on the point being conclusive in this trial. As regards the second instance, the Magistrate had a discretion to commit the case or to try it himself. In view of the maximum sentence, however, a commitment would only be justifiable on very special grounds, and it is obvious that if the Magistrate made any mistake, it was in at all contemplating commitment. When the accused expressed the intention of cross-examining all the prosecution witnesses, the Court could not but see that a commitment would result in an unwarrantable waste of public time without any advantage to anybody, and rightly reconsidering the matter exercised a sound discretion in rejecting the idea of commitment to the Sessions. It must also be remembered that the Public Prosecutor argued against commitment. Even if the Magistrate had not exercised a sound discretion in changing his mind, it could not fairly be contended that the order, though unfavourable to the applicant, exhibits even the faintest trace of bias. It was entirely proper not to commit the case to the Sessions.

As to the third instance cited, there was nothing in the casual enquiry of the Magistrate that was not, in the circumstances, entirely reasonable. The Sub-Inspector who held the inquest had formed the opinion that the western gate was not closed as asserted by the prosecution, but was open, as stated by the defence, and the Court would have failed in its duty if it did not obtain from the police officer who had recorded such an opinion, the reason for not placing on trial the gateman, who, if the police officer''s opinion was correct, must be responsible for the occurrence. The, Magistrate did not give expression to any opinion.

I accept the version of the Magistrate as to the fourth incident. It appears that the representative of the applicant was pressing for the production of a letter on the ground that it would show how the gateman received his injuries. The Magistrate pointed out that the letter could not be legally taken in evidence in proof of the manner in which the gateman had received his injuries and in the course of the discussion remarked: "Supposing it were written in that letter that the gateman had come by his injuries by being knocked down by accused''s lorry, do you think I will have to implicitly believe it? When such a serious railway accident takes place, your railway people can write anything and I cannot take it as true without proof." Apart from other considerations, I fail to see how this remark indicates bias or the influence of high official opinion (as to the latter there is not the slightest trace of anything to support it, and it is wholly groundless and should not have been asserted). The Magistrate only points out that the mere fact that a railway subordinate has written something will not make it evidence or show it to be true.

Moreover, the facts clearly show that in calling after great delay and towards the end of the cross-examination for the letter, and describing it as an important document, the representatives of the applicant then sought to make much out of nothing at all, as indeed is sought now. No mention was made of the letter in examination-in-chief. In cross-examination the gateman says he carried no letter and the Assistant Station Master says he did not even see the gateman during that day except shortly after the accident. The first mention is in cross-examination of the Station Master who merely says that he asked the Assistant Station Master to write such a letter. The Assistant Surgeon cannot recall it. The Civil Surgeon, though wired to, was unable to produce it and the case of the Crown is that it does not exist, and that in any case its evidentiary value would be slight. There is in fact medical evidence as to the injury to the gateman, and the Assistant Station Master has himself been examined, so that the only value of the letter would be to show that his deposition is in accordance with his statement in the letter. The Magistrate is manifestly right in his view that an interested party like the applicant, who, as all the indications show, was pressing the case in a manner not consonant with the impartial conduct of criminal oases by the Crown or a public authority, who should comply strictly with the law of evidence and procedure, more especially in a matter where the vakil for the applicant was pursuing a course wherein he had not the support of the Public Prosecutor or under whose directions the statute enjoins that he shall act. Mr. C.C. Das, indeed, concedes that the letter is practically valueless as evidence. What he objects to is the remark of the Magistrate. But the remark in my judgment does not contain any indication whatever of prejudice or amount to anything more than a demand that the prosecution should prove its case to the satisfaction of the Magistrate by admissible evidence. A similar rebuff to an unreasonable demand by the prosecution, especially when as in this case unreasonably urged or at a later stage, is not infrequently and with justice administered to a Public Prosecutor without implying any prejudice on the part of the Judge.

In my opinion bias and prejudice have not only not been proved but have been abundantly disproved. The trial appears to have been properly conducted by the Public Prosecutor and by the Magistrate, any difficulties arising being attributable to unseemly ardour on the part of the representatives of the applicant.

Accordingly no ground has been established on the merits for granting any of the prayers made by the applicant.

The rule is accordingly discharged and the trial should proceed and the case be disposed of without any avoidable delay.

I add that I have dealt with the case as if it had come regularly before the Court, but it is to be observed that the affidavits in the case being sworn before Presidency Magistrates of Calcutta are not admissible in this Court under the interpretation, in Ramchandra Madak v. King-Emperor Criminal Revision No. 255 of 1925, of Section 539 of the Code of Criminal Procedure, and that the application might also have been rejected on that ground.