22 April 1954
Supreme Court


Case number: Appeal (crl.) 9 of 1952






DATE OF JUDGMENT: 22/04/1954


CITATION:  1954 AIR  455            1955 SCR  238  CITATOR INFO :  R          1955 SC 309  (7)  R          1960 SC 266  (37)  R          1966 SC 220  (16)  RF         1967 SC 776  (6)  R          1969 SC 686  (5)

ACT: 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.

HEADNOTE: If  for no fault of the accused reasonable  opportunity  has not  been  given  to him to adduce his  evidence  under  the imperative  provisions  of a. 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 a 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.

JUDGMENT: 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 (1)(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. Mukherjea and Sukumar Ghose for the appellant in Cr.  A. No. 9. A.   K.  Basu, (Ganpat Rai, with him) for the  appellant  in



Cr. A. No. 13. A.   K. Dutt and Ganpat Rai for the appellant in Cr. A.  No. 14. Sukumar Ghose for the appellant in Cr.  A. No. 15. B.Sen,  A. M. Chatterji and P. K. Bose, for the  respondents in all the appeals, 217 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 a building contractor under the name and  style of  British  India Construction Company.  This  firm  had  a branch  at  Asansol  which was, at the  material  dates,  in charge  of  the  appellant J. K. Bose.  In  May,  1942,  the military  took  up construction 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 a 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  there  for.   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  a view to avoid the refund of this  excess,  the appellants entered into a conspiracy, under which S. K. Dutt was to prefer a 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 constructed by the appellant,  S.  K. Dutt, were, in fact, 28 218 constructed  by  the military, and that the order of  R.  W. Mathams  bearing date 7th July, 1942, was, in fact,  brought into  existence  sometime  in March, 1943.   It  is  further stated for the prosecution that as consideration for passing the above bill, a bribe of Rs. 30,000 was agreed to be  paid to  R. W. Mathams and to P. C. Ghose, that S. K.  Dutt  sent that amount by cheque to J. K. Bose on 16th March, 1943, and that on 17th March, 1943, R. W. Mathams 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 amount 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 produced Exhibit 27 series,  which  are



receipts  purporting to have been signed by the several  sub contractors. The  Special  Tribunal which tried the case,  delivered  its judgment on 9th May, 1946, acquitting the appellants on  the charge of conspiracy but convicting them for the offence  of bribery.   Appeals against this judgment 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.  Mathams  applied to the Privy Council  for  special leave to appeal, 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 a certificate Under section 205 of the Government of 219 India Act, and as the 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 examination of  witnesses on  the side of the prosecution commenced on 6th  September, 1945,   and  it  was  concluded  after  undergoing   several adjournments on 29th March, 1946.  On 27th March, 1946,  the appellant,  J. K. Bose, filed a 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 evidence 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  a 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 Tribunal, dated 8th April, 1946,  refusing to  issue process was accordingly illegal.  It  was  further observed that 220 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 accordingly set  aside the convictions, and directed that the appeal should be  re- heard   "after  giving  a  reasonable  opportunity  to   the appellant  No. 2 (J.  K. Bose) to 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 before the Court." This  judgment  was passed on 23rd April,  1948.   When  the matter went back to the High Court of Calcutta in  pursuance of  this judgment, an order was passed by that Court 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 Privy  Council to this Court for disposal.   As  information concerning the exact position of the appeal of R. W. Mathams was for sometime lacking, and as the prospect of that appeal being heard appeared distant, the High Court passed an order on 9th April, 1951, that the remanded appeals would be taken up  for  hearing  on 11th June, 1951,  that  the  appellants should  take  the  necessary steps for  examination  of  the witnesses mentioned in the list, dated 27th March, 1946, and that  the office should take steps to secure the  attendance of  those  witnesses, except one who was in  East  Pakistan. The  list was accordingly filed on 8th May, 1951.   Therein, it  was stated that out of the 15 persons whose  names  were mentioned  in  the  list, dated 27th  March,  1946,  it  was possible to get the address of only six persons, and that as for   the  rest,  it  was  not  possible  to   trace   their whereabouts,  as they had mostly migrated to Asansol at  the time  when the works were being executed and had since  left that  place.   Out of the six persons whose  addresses  were given,  B.  C.  Mukherjee and R. K. Paul,  were  served  and examined in Court. 221 A  third  witness  was given up, as  he  was  a  handwriting 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  endorsement 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  appeal  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 a certificate of  the High Court under article 134(c) of the Constitution. The  argument in support of these appeals is that the  trial of  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 accordingly  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 to 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  had undergone a radical  change.   In  their application,  the appellants stated that the whereabouts  of most of 222 the  witnesses  could not be traced, and this is not  to  be wondered  at   Burnpur, where the works had to be  executed, is  a petty township situated in a 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  there  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 a  further  complication. In  1947, two Dominions came into being as a result  of  the Indian  Independence  Act,  and there  was  a  partition  of Bengal.   It is not unlikely that some of these  contractors belonged to East Pakistan or bad 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 a  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 bad 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  Exhibit  27 series, the best evidence can only be of those persons.   It may  be  that the two witnesses are not speaking  the  truth when  they say that they saw the other persons mentioned  in the list working on the roads, 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  real persons who could not be examined for no fault  of the appellants, grave injustice would result in the  accused being  condemned  without the evidence  of  these  witnesses having been taken.  For this situation; the 223 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 the 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



probabilised  the  case  for the prosecution.   It  must  be conceded  that the evidence on record tends to  establish  a strong  case  against the appellants.  But then, that  is  a 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  documents, has deprived the  appellants  of  an opportunity 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.  Bat 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  appear, limited to the question whether the proceedings were bad for want of sanction under section 197 of the Criminal Procedure Code.  By a further 224 order dated 5th August, 1948, the Privy Council enlarged the scope of the appeal by permitting the appellant to raise the contention  that there had been a contravention  of  section 257  of  the  Criminal Procedure Code.  These  are  the  two points  that  arise for determination in  his  appeal.   The question  whether sanction under section 197  was  necessary for instituting proceedings against the appellant on charges of  conspiracy  and  of bribery, is  now  concluded  by  the decisions  of  the Judicial Committee in H. H. B.  Gill  ’V. The  King (1) and Phanindra Chandra Neogy v. The  King  (1), and must be answered in the negative.  The question  whether there  was  contravention  of section 257  of  the  Criminal Procedure  Code  and a denial or fair trial  must,  for  the reasons  already given, be answered in the affirmative,  and the  conviction 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.