Ronald Wood Mathams Vs. State of West
Bengal  INSC 51 (22 April 1954)
AIYYAR, T.L. VENKATARAMA MAHAJAN, MEHAR CHAND
(CJ) DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H.
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)
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 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 scrupulously 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 (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.
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. 1,89,45814-0 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 reheard
"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
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 established, 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 opportunity 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
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
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.