Usman Haroon v. Emperor

Stone, C.J:— We have before us six transfer applications, each being by a Muslim and made on the ground that the Magistrate, Mr. J.M Barot, Presidency Magistrate, Second Court, Esplanade, Bombay, in whose Court the cases stand, has shown, in dealing with previous cases, a communal bias and discrimination against Muslims and in favour of, Hindus. Each of these applications, therefore, asks that the case of the accused may be transferred to the Court of some other Magistrate, who is neither a Hindu, nor a Muslim. In each of these cases the accused is charged with an offence arising but of or connected with the communal disturbances.

2. In Transfer Application No. 735, the accused is charged under Ss. 451, 454, 457 and 380, Penal Code, with house-breaking and theft. In Transfer Application No. 736, the accused is charged under Ss. 143, 147, 149, 454 and 380, Penal Code, with unlawful assembly, rioting, trespass at night and theft. In Transfer Application No. 737 the accused is charged under S. 326, Penal Code, with grievous hurt inflicted by a cutting instrument. In Transfer Application No. 738 the accused is charged under Ss. 324 and 326, Penal Code, with simple hurt and grievous hurt with a cutting instrument. In Transfer Application No. 739, the accused is charged under Ss. 143, 147, 149, 454, 457 and 380, Penal Code, with unlawful assembly, rioting, trespass at night, housebreaking and theft and in Transfer Application No. 699 the accused is charged under S. 326, Penal Code, with throwing a corrosive acid so as to cause grievous hurt. To each of these applications, is annexed in the form of schedules, lists of cases in which members of each community have been convicted or bail applications granted or refused by the Magistrate, and it is alleged, that by comparing the cases of the different communities a discrimination in treatment is established. The total number of examples given is 40, 11 referring to Muslims and 29 to Hindus.

3. Such a charge levelled against the impartiality of a Magistrate is a very serious one to bring, and demands from us a most careful and exhaustive examination, because, if it be well founded, we should not hesitate to act in the most drastic manner, but, if on the other hand, the charge is unfounded, then the Magistrate is entitled to the fullest protection from this Court, and to be exonerated by us from such grave imputations against his honour as a judicial officer.

4. As this case was opened on the first day, Mr. Parpia, on behalf of some of the accused, made two main submissions, first; that the facts and sentences in the examples given show that bias and discrimination has taken place, and secondly, that even if that charge cannot be sustained, then at any rate the circumstances and the variations in the sentences are sufficient to induce in the mind of any reasonable person a reasonable apprehension that justice has not been done, and therefore will not be done in hip particular case, so that he will not get a fair trial.

5. By Section 526 of the Cr PC, it is provided:

“(1) Whenever it is made to appeal to the High Court: (a) that a fair and impartial inquiry or trial cannot be had in an; criminal Court subordinate thereto.”

6. The High Court may order, amongst various alternatives, the transfer of the case.

7. But this section is not exhaustive, and as has been pointed out by Sir Lawrence Jenkins in 2 Bom. L.R 7551, referring to an earlier case in the Calcutta High Court, that in considering the expediency of directing a transfer for the ends of justice, the Court has deemed it essential to decide not merely the question whether there has been any real bias in the mind of a Magistrate, but also the further question

“whether incidents may not have happened, which though they may be susceptible of explanation, are nevertheless such as are calculated to create, in the mind of the accused, a reasonable apprehension that he may not have a fair and impartial trial.”

8. On the other hand, as has been laid down in 1894 Un. Cr. C. 6852,

“the High Court will not pass an order of transfer merely out of deference to the susceptibilities of an accused when no sufficient grounds exist.”

9. There are many other cases in the various Courts of this country, and from them the principle is quite clear, that apart from the susceptibilities of the accused, if circumstances do exist or events have happened, which are calculated to create in the mind of the accused the reasonable apprehension that he will not be fairly treated at his trial, the transfer should be made.

10. We have called for the records of the cases, mentioned in the schedules given to the accused's applications, and they have been fully examined by us and by counsel in this Court. What they unmistakably show is that fines and lighter sentences have been given where the accused pleads guilty, and that in the cases selected, only Hindus pleaded guilty. Further they show, and show in our opinion very clearly, that no sufficient time has been taken in order to give proper care and attention to the trial of cases, that there is no checking of the statements made by the accused, except where such statements are confirmed by the police-officer making the arrest, and that in no case has any witness for the defence has been examined. From the report, which we called for from the Magistrate, and the information supplied to this Court by the Government Pleader, it appears that from the beginning of September of this year up to and including 14th December, which is the date of the Magistrate's report, besides the ordinary day to day applications and miscellaneous work, the Magistrate has disposed of 2990 cases arising out of the disturbances, 1760, being cases connected with breaches of curfew orders, and the remaining 1230 cases being of a much more serious character. With the assistance of counsel on both sides and on the information supplied we have made certain calculations, which show, that the 2990 cases were disposed of in 290 hours, if 3 minutes be attributed on a average to each curfew case, they would have occupied 88 hours of the Magistrate's time, leaving 202 hours for the trial of 1230 of the more serious cases. This works out a little under 10 minutes per case. That is totally inadequate. The fact that the Magistrate is so busy, is poor consolation to accused persons, who will not get a proper trial, because too many cases are placed on the Magistrate's board.

11. But quite apart from this, the Magistrate has attached to his report, which we required him to make, lists of comparative cases, with the object of showing that in many cases Muslims had received lesser sentences the Hindus, for offences against the order of the Commissioner of Police prohibiting the carrying of weapons, and whilst these lists certainly do tend to show that such is the case, they also demonstrate something else of a most disturbing character, viz., the almost infinite variety of sentences passed for the same offence. We will only deal with the cases in which the carrying of a knife or some cutting instrument is alleged. Of these 93 examples are given, and, in 39 of them, the substantive sentence is imprisonment, in 48, the sentence is a fine only, while in the remaining eight cases the sentence is imprisonment and a fine and in default a further term of imprisonment.

12. The terms of imprisonment comprise, one day, two weeks, three weeks, one month, two months, four months, six months and eight months; whilst the fines cover a most remark, able range: Rupees 3, Rs. 5, Rs. 10, Rs. 15, Rs. 20, Rs. 25, Rs. 30, Rs. 35, Rs. 40, Rs. 50, Rs. 60, Rs. 80 and Rs. 100. The mixed sentences of imprisonment and fine range from: One day's simple imprisonment and Rs. 30 fine or in default one week: One day's simple imprisonment and Rs. 15 fine or in default one month: One day's simple imprisonment and Rs. 30 fine or in default one month: One day's simple imprisonment and Rs. 100 fine or in default one week: One day's simple imprisonment and Rs. 200 fine or in default six weeks: One day's simple imprisonment and Rs. 400 fine or in default one month: One day's simple imprisonment and Rs. 400 fine or in default two months.

13. How can such a diversity of sentences for the same offence be justified on any rational system? What difference can there be between, a man who carries a knife and is sentenced to one day's simple imprisonment and Rs. 30 fine or in default one week, and a man who, for a similar offence, is sentenced to one day's simple imprisonment and a fine of Rs. 15 or in default one month or again one day's simple imprisonment and Rs. 400 fine or in default one month and one day's simple imprisonment and Rs. 400 or in default two months?

14. The answer is to be found in the Magistrate's report:

“In deciding these not cases, I had to take into consideration not only the serious situation in the City, but also the nature of the weapon found with the accused, his position in life, his profession, the place where he was found and the purpose for which it was carried. In addition to these circumstances the impression created by the accused and the prosecution witnesses on the spur of the moment play a very great part in arriving at the correct decisions.”

15. The first part of the reasons given is unobjectionable, but the latter part is very wrong indeed. What sort of impressions, created by the accused or the prosecution witness “on the spur of the moment”, does the Magistrate take into account? This goes far beyond any consideration of whether the accused has made a truthful statement or a false one. It involves the Magistrate's personal reactions in favour or against the accused, arrived at, not on evidence or on any adequate reflection, but “on the spur of the moment.” We condemn this practice in the strongest terms, coupled with the infinite variety of sentences, which we can only describe as utterly capricious, it is bound to give rise to the gravest misgivings in the public mind, that justice is not being done. In fact, as appears from the Magistrate's report, Hindus are also complaining of his bias in favour of Muslims. We are not in the least surprised to hear this, because, as the Magistrate apparently works to no system, there are no settled principles upon which he can proceed and by which the public knows that he proceeds.

16. We now propose to lay down for the guidance of all Magistrates the following directive which all of them will follow in future with regard to the elements which are to be taken into account for the purpose of assessing the quantum of sentence. We cannot do better than refer to the passage set out in Halsbury's Laws of England, Vol. IX, p. 256, as applied to non-jury cases. It is as follows:

“The Court in fixing the punishment for any particular crime, will take into consideration the nature of the offence, the circumstances in which it was committed, the degree of deliberation shown by the offender, the provocation which he has received, if the crime is one of violence, the antecedents of the prisoner up to the time of sentence, his age and character.”

17. And these are all matters which must be established by evidence and not by impressions, created on the spur of the moment.”

18. As to the scale or range of sentences to which those elements are to be applied, we propose to give this guidance. In the weapon cases referred to in the lists of the applicants and of the Magistrate, it is really a very simple matter because the Legislature by the City of Bombay Police (Amendment) Act 15 [XV] of 1946, S. 4, has not only prescribed the maximum sentence but also the minimum sentence. The maximum sentence is one year and a fine, the minimum sentence is four months with or without a fine, and it is provided that if the Magistrate thinks fit to give a lesser sentence than four months, his reasons are to be recorded in writing. We note in passing, that although some of the cases mentioned in the lists are before this amending section came into operation, in none of the cases, the records of which we have examined, are the reasons for giving a lesser sentence than four months adequately set out. In view of the amending section, there is very little room for any great divergence in sentences. In the worst type of cases, where the knife is intrinsically a dangerous weapon of offence, and is carried by some one in a locality where disturbances are taking place, and where he cannot give any satisfactory account of his presence, the maximum sentence of one year's imprisonment should be passed; for a second of such offences one year plus a substantial fine or in default three months further rigorous imprisonment. Between that and the minimum sentence of four months prescribed by law we cannot see why there should be more than two steps that is to say six months and nine months. The minimum sentence of four months should be passed in all other cases, except where there are some special or extenuating circumstances. We have already laid it down in revisional applications before us that in the case of millhands who need a small or special knife for the purposes of their work, and who, without any malicious design, take it out into the public street on their way to their homes, rather than risk leaving it at the mill, that the proper sentence is, one week. The only other sentence of which we can conceive is for a case such as is well exemplified in one of the cases under challenge, where a peon who had an ordinary penknife used for sharpening pencils was told by his employers to take a telegram to the Post Office, and inadvertently forgot to remove the penknife from his pocket. Such cases as these should be dealt with either by binding over or by a small fine. The stick cases admit of slightly more variation in the lower sentences, because there are so many different kinds of sticks used for domestic or occupational purposes, and which are not intrinsically weapons of offence.

19. It is quite clear that this particular Magistrate has had placed on his shoulders more work than could possibly be performed in a judicial manner, and in this respect he is entitled to sympathy, for it is impossible to try cases of this gravity involving sentences of imprisonment up to one year, at an average rate of under 10 minutes per case, that is nothing short of travesty of justice, and of itself is bound to give rise to the utmost uneasiness in the public mind, but coupled with the lack of any system by which punishment is quantified, it is inevitable that in times of communal discord, charges of discrimination and bias should be levelled against Magistrates, who are assessing the sentences in these cases by no recognised system.

20. When these cases were called on, on the second day, Mr. Parpia, who was in possession of the Court, and to whom we are much obliged for his skilful and circumspect handling of an extremely difficult case, stated that Sir. Taraporevala, Mr. Somjee, Mr. Peerbhoy and himself had an opportunity of carefully considering the records, which we had sent for, and which were produced in Court on the previous day, and that having considered them, he was authorised to state on behalf of these counsel and stated for himself also, that there was no justification for the charge of actual bias or discrimination by the Magistrate, and that such charge was unreservedly withdrawn. That was a very proper attitude for counsel to adopt and is in accordance with the best traditions of the bar. But quite independently of this withdrawal we have come to the same conclusion and we state, and state with emphasis, that as a result of our scrutiny of the cases relied upon by the various accused as showing bias, and of all the other factors and circumstances laid before us, that this Magistrate Mr. J.M Barot is entitled to be exonerated and we do exonerate him from the allegations of communal bias and discrimination. But these applications have served a most useful public purpose, for they have shown up certain glaring defects in the existing system.

21. It is a vital necessity, if law and order are to be maintained, that the criminal Courts, whose duty it is to administer the penal laws, should be above criticism or challenge. Justice must not only be done, but must manifestly appear to be done. That we regret to say has not taken place in these cases arising from the recent disturbances, not we emphasise by reason of any communal discrimination, but for the reasons we have already stated.

22. The question remains, what is to be done with these transfer applications. The charge of bias and discrimination fails. But the applicants have shown from the materials they have brought before this Court that they have reasonable apprehension that in the existing circumstances they may not get a full and proper trial.

23. What is needed is time for the authorities and the Chief Presidency Magistrate to make proper arrangements in order to provide, (1) that there shall be sufficient Magistrates or some other distribution of work so that these cases can be tried with that care and attention which they demand, and not by being rushed through at the rate of under 10 minutes per case, on “impressions created on the spur of the moment,” and (2) that the Chief Presidency Magistrate in the light of the directive and the guidance given in this judgment should have an opportunity of considering, with all his colleagues, the introduction of a system for quantifying sentences for all cases which arise out of communal strife, and should with them lay down the principles which hereafter can be followed by all Magistrates.

24. We, therefore, adjourn all these transfer applications to 11 A.M on Tuesday 7th January, 1947, by which date the Chief Presidency Magistrate will furnish us with a report of what has been done. If in the meantime new arrangements are made, and the report of the Chief Presidency Magistrate is ready, then a special vacation bench will be formed on application being made to Lokur, J.

(The Chief Presidency Magistrate, on receipt of the above judgment, made an order distributing all cases arising out of the disturbances among the three Courts at the Esplanade, and circulated copies of the judgment to Magistrates Concerned. The trying Magistrate as well as the Chief Presidency Magistrate submitted separate reports to the High Court.)

25. Stone, C.J:— The report of the Chief Presidency Magistrate which we called for by our judgment of 20th December, 1946, has now been received and by it and by a circular which has been issued by the Chief Presidency Magistrate to all his Magistrates it appears that new arrangements have been made for the distribution of magisterial work arising out of the disturbances and that there will now be three Magistrates at the Esplanade Police Court whose duty it will be to try these eases. The cases will go into the list of these three Magistrates on a rotation basis depending entirely upon the day upon which any particular case first happens to come before the Court. In our opinion that is a very satisfactory arrangement. We also note that the Chief Presidency Magistrate has sent a copy of our judgment containing our criticism with regard to the variety of sentences for the same offence to all his Magistrates and that the Magistrates have now the question of evolving a system for these sentences well before them.

26. We are asked by Mr. Peerbhoy and Mr. Parpia who represent the six accused in these transfer applications that in spite of the withdrawal of the allegation of actual bias against Mr. Barot and our exoneration of him, these cases should still be transferred, on the ground that the whole of the circumstances which have come to light in the investigation of this matter must have introduced into the minds of the accused a feeling that they could never get a fair trial before this Magistrate. In our opinion that submission is not well founded. These applications, as we have already stated, have served a very useful purpose, but it is now quite clear that in view of our previous judgment these six accused persons will get, before whichever Magistrate their cases may come a full and proper trial. We do not know what will happen to these six cases in the new distribution of magisterial business which the Chief Presidency Magistrate's report informs us has been made.

27. It may well be that in levelling out the work they may go to the board of some other Magistrate, or it may be that the learned Magistrate, Mr. Barot, may himself ask to be relieved of them. But in the circumstances and in view of the directive and guidance given by our judgment there no longer exists any reason why we should interfere judicially. We leave the matter to the Chief Presidency Magistrate. The rule in each case is discharged.

28. Rule discharged.