Meredith, J.:— This appeal by Government is against a decision of the Sessions Judge of Purulia, acquitting four persons, Bhim Bera, Atul Dalai Bhagirathi Barik and Jadav Barik, on appeal. These four respondents are all eartmen of Chakulia. They were convicted, by a first class Magistrate under rule 81(4) of the Defence of India Rules, and sentenced to six months' rigorous imprisonment each, in the following circumstances. On the 16th of August, 1943, notification no. 11277-P.C.-324/43-P.C. was published in the Official Gazette, whereby the Provincial Government, in exercise of the powers conferred by clause (a) of sub-rule (2) of rule 81, Defence of India Rules, ordered that no person shall export or carry or cause to be exported or carried by rail, river or road any quantity of any of the commodities specified in the schedule, or any product thereof, from any district in the province of Bihar to any place outside the province of Bihar, except with the written permission of the Chief Controller of Prices and Supplies, Bihar. There was a proviso with which we are not concerned. The annexed schedule included, inter alia, rice and pulses.

On the night of the 2nd of December, 1943, Amarjit Singh (p.w 3), Inspector of Police, Ghatsila, went by train to Gidni in Bengal with Havildar Radha Prasad Singh (p.w 6), constable Rameshwar Singh (p.w 4) and others in order to detect cases of contravention of the order just cited. They alighted in the small hours of the morning, and began to walk back towards Chakulia. The boundary village in Bihar in that area, as the map shows, is village Bend, the actual border being a river on the boundary of that village. When the police party got to the outskirts of village Bend they saw four carts coming towards Bengal, and driven by the four respondents. The carts were found to contain 12 bags of rice and 9 bags of dal (pulse). The cartmen and the loaded carts were brought to Chakulia, and there the Inspector lodged a First Information (Exhibit 1), at 9 a.m This information, while mentioning the facts and the names of the cartmen, named only one person, Benarsi Marwari, of village Gidni as accused, on the ground that he was the merchant who had purchased the grains at Chakulia to take them to his god own at Gidni. After police investigation charge-sheet was submitted against this man and another Marwari, presumably the vendor. The Sub-divisional Officer, who had taken cognizance on the police report, transferred the case for trial to Mr. Sarkar, a first class Magistrate, who eventually convicted the respondents. The proceedings then took a peculiar and unusual course. On the 10th of May, 1944, the two accused persons, Benarsi Marwari and Bishwanath Marwari, were present and two prosecution witnesses were examined. These prosecution witnesses were two of the cartmen respondents, namely, Jadav Barik, and Bhim Bera. A very astute move was then made by the lawyer defending the Marwaris. He filed a petition for making the two cartmen already examined, and who had just given evidence against the Marwaris, accused persons in the case. The Court Sub-Inspector apparently walked straight into the trap, and asked that all the four cartmen should be made accused. This was accordingly done, and the trial thereafter proceeded against all six persons. The learned Magistrate made no formal order expunging from the record the evidence of the two cartmen already examined, though he seems to have realised that obviously the evidence of these two accused persons could not be used in the trial, because in his judgment he says

“It will be seen that in order to be scrupulously fair to the accused persons, I have not considered their evidence at all in this case.”

On the 28th of July, after all the prosecution witnesses had been examined, the learned Magistrate evidently excluding from his mind the evidence of the cartmen (p.ws 1 and 2), decided that there was no prima facie case against the Marwaris, and so he discharged them under section 253 of the Code of Criminal Procedure. He then proceeded to frame; charges against the four cartmen, and after defence they were convicted as aforesaid for breach of the Government order already quoted. The Magistrate held that on the evidence it was clear that the cartmen were taking the grains from Bihar into Bengal. On appeal the question of any prejudice to the accused by reason of the procedure followed was apparently not raised. At all events, the learned Judge has made no reference to this matter in his judgment. He acquitted the respondents on three grounds, first, because the prosecution had not proved due compliance with the provisions for publication of such orders contained in rule 119 of the Defence of India Rules, secondly, because he thought the onus lay upon the prosecution to prove that the export was being made without the written permission of the Chief Controller of Prices and Supplies, Bihar, and the prosecution had not attempted to discharge that onus, and, thirdly, because on the facts he thought it had not been established that the cartmen had in fact taken the grains across the border. There were discrepancies in the evidence, and they might have been arrested within Bihar, in which case it was not sure that they were crossing the border, or in Bengal, in which case it was not sure that they had crossed it.

In addition to these three questions, we have also had to consider the question whether the procedure adopted was so illegal as to vitiate the trial, or whether the accused were prejudiced thereby. Mr. Mazumdar for the respondents has further contended that the proceedings against his clients were without jurisdiction, having regard to the provisions of rule 130(1), Defence of India Rules, wherein it is provided that

“No Court or Tribunal shall take cognisance of any alleged contravention of these rules, except on a report in writing of the facts constituting such contravention, made by a public servant.”

I shall deal with these points in turn.

First, with regard to rule 119. This question is, in my judgment, set at rest by the decision of the Full Bench of this Court in Mahadeo Prasad v. King-Emperor. In that case it was laid down that whether or not a presumption under section 114, illustration (e) of the Evidence Act should be drawn must depend upon the facts of each case, but that it can properly be drawn where the order under the Defence of India Rules is a, Government order and is published in the Official Gazette, which is the normal and accepted method of publication for many years in the case of such orders: that in such a case the Court is justified in presuming that the provisions of rule 119 were fully complied with and that the publication in the Gazette had been made after Government had decided that such publication was best adapted for informing persons whom the order concerned. The decision of the Full Bench was expressed in the following terms: “Where an order of a general nature made by the Central or the Provincial Government under the Defence of India Rules has been notified in an official publication (Gazette) where all statutory rules and orders are published normally and usually and it appears that the order has been so published because its publication is essential under, rule 119, it may be presumed that the publication was made not merely in partial compliance with rule 119 but in compliance with all its provisions including the provision as to the determination of the most suitable form of publication.” The learned Sessions Judge was, therefore, wrong in the view which he took on this point, and his decision is doubtless explained by the fact that it occurred before the decision of the Full Bench, and previously there had been a conflict of opinion in this High Court and in some of the other High Courts.

With regard to the second point, I consider that the learned Judge was also wrong. The words in the Government order exempting persons who have the written permission of the Chief Controller are expressed as an exception—

“except with the written permission of the Chief Controller of Prices and Supplies, Bihar”.

Under section 105 of the Evidence Act

“When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.”

The operative words in the present case are

“within any special exception or proviso contained………………………in any law defining the offence.”

The present is a case where the exception is contained in the law defining the offence, and having regard to this wording in section 105 it is not open to the defence to contend that, since the offence is defined subject to the exception, the prosecution must prove the complete terms of the offence as defined including the absence of the exception. There is weighty authority for this view in the decision of Sir John Beaumont, C.J and Macklin, J. in Emperor v. Bahyabhai Savchand Jhaveri.

With regard to the third point, it seems that the evidence is so clear that the grains were being taken from one province to another that this Court would not be justified in allowing the learned Judge's finding to stand even in an appeal against an acquittal. Having regard to the provisions of rule 121 of the Defence of India Rules it makes no difference if the cartmen had not actually crossed the border so long as their intention to do so was established. Rule 121 provides that

“Any person who attempts to contravene or abets, or attempts to abet, or does any act preparatory to, a contravention of, any of the provisions of these rules or of any order made thereunder, shall be deemed to have contravened that provision or as the case may be, that order.”

The learned Judge has, in my opinion, made too much of minor discrepancies in the evidence which were inevitable, and resolved themselves mainly into different estimates of distances from various points which in no way affected the credibility of the witnesses, or the general effect of their evidence, and secondly differences of opinion as to whether the spot was actually within Bengal or within Bihar. These discrepancies, to my mind, rather make it clear how close to the actual border, one side or the other, the carts must actually have been intercepted. Indeed, the Sub-Inspector of Chakulia (p.w 7), to whom the spot was pointed out by the Inspector, says that, though the place shown lies on the Bihar side of the border in village Bend, the accused persons were caught at the bridge, half of which was in Bihar and half in Bengal. I do not understand why the learned Judge says that this was a very extraordinary statement and nobody's case. The thana map, which we have inspected, shows that the actual boundary is a river, and as the road runs across it there must have been a bridge. The Inspector himself says that when they found the carts they were beyond village Bend on the Bengal side, just beyond the border of village Bend in Bihar, and the cartmen were moving towards Bengal. When he says

“beyond village Bend on the Bengal side”

he is no doubt referring to the basti or built up area. That statement is, therefore, consistent with his statement that it was within the village border in Bihar. This witness also says there is one bridge near village Bend. The Havildar (p.w 6) confirms this witness. He says they caught the carts in Bihar, and they were going from Bihar to Bengal. He says

“the accused persons were caught 8 or 10 steps from the border in Bihar as shown to me by the Inspector.”

It is true that the constable Rameshwar Singh (p.w 4) says:

“We saw the carts in Bengal near the border of Bengal”,

but it is clear that he has no exact knowledge of the locality. In reply to the Court's question he said:

“The border of Bengal and Bihar was one mile. I do not know the border of Bengal and Bihar.”

It is clear from his evidence also that the carts were caught near a river. He says:

“We crossed a river after catching the accused persons”,

and then he corrects himself:

“We caught them after crossing the river.”

If the cartmen were not really going from Bihar to Bengal, one would expect them to say whence in fact they were coming and where they were going. They have made no attempt to do so. When questioned orally they all said they would file a written statement. The written statement merely tries to pick the prosecution evidence to pieces, and point out discrepancies. There is no attempt to state what in fact were the real movements of the accused if they were not those alleged by the prosecution. I consider there is no room for doubt on the point, and it was fully established that the grains were being taken across the border.

I now turn to the question of the examination of the two eartmen as witnesses. I want to make it clear, in the first place, that the course adopted was not, in my opinion, either prudent or desirable. The most blameworthy people in cases of this kind are the merchants who do the exporting, deliberately violating the law for their own profit in times of difficulty and food shortage. The eartmen had given evidence against the Marwari accused, which, needed serious consideration and which, if found to be true, might have justified their conviction. By the course adopted the only evidence against the Marwaris was lost. That course need not have been adopted. If necessary, the eartmen could have been tried afterwards in a separate trial. Secondly, if it was considered necessary to make the eartmen accused persons, then it was not sufficient to say that their evidence would not be taken into consideration. There should have been a definite order to expunge it from the record and that should have been done. It was quite wrong to leave their evidence on the record as (p.ws 1 and 2), numbering the remaining witnesses from (p.w 3) onwards. Further it was desirable that the trial should have started afresh before another Magistrate. It appears from the order-sheet that the record was returned to the Sub-divisional Officer, but, apparently at the request of the accused, was sent back to Mr. Sarkar for concluding the trial, as the accused did not wish a trial de novo. It is not clear from the order-sheet whether this was done at the instance of the Marwari accused, but I think that must have been the case as that course was in their interest and that of no one else.

Having said so much, I am further of opinion, having carefully considered the legal position, that there was no definite illegality. Section 342, sub-section 4 says:

“No oath shall be administered to the accused,”

but when the oath was administered to the two eartmen they were not accused. The charge-sheet had not been submitted against them, and they were not then on trial. Their trial commenced only when they were made accused persons. Therefore, there was no violation of the terms of section 342. Queen-Empress v. Mona Puna is authority for the view that the word “accused” in section 342 refers only to a person over whom the Court is exercising jurisdiction as such. That was a case where the police arrested several persons, one of whom Hari made certain disclosures to the police, whereupon the police discharged him and made him a witness, and at the trial he gave evidence against his accomplices who were all convicted. It was held that the evidence of Hari was admissible, though he had been illegally discharged by the police. In Jhoja Singh v. Queen-Empress it was also pointed out that the word “accused” means a person over whom the Court is exercising jurisdiction.

There is a Full Bench case of the Rangoon High Court, which is instructive on the point under consideration. I refer to King-Emperor v. Nga Po Min. There a number of persons were being tried jointly. One of the accused cited another as his defence witness, and the latter was duly sworn and gave evidence. Both persons were convicted. Here there was a clear breach of the provisions of section 342(4), and it was accordingly held that the evidence of the accused upon oath was inadmissible and had been wrongly received. But it was pointed out that the effect of non-compliance with the statutory rules of procedure must vary according to the gravity and the result of the breach, and the test in each case is whether the proceedings have resulted in a miscarriage of justice. If the accused is materially prejudiced by the breach of procedure, or if another mode of trial is substituted for that prescribed by the Legislature, in either case there has been a failure of justice. But a decision which is just and reasonable on the merits cannot be disturbed, merely because a flaw in the procedure is found which is not fundamental and which has not worked any injustice.”

Kortikar v. Emperor is another case in which it was held that the “accused” referred to in section 342 means an accused person under trial who has to be questioned by the Court in respect of the evidence against him. In that case the charge-sheet contained the names of two persons as accused who were not sent up for trial and were cited as witnesses. It was held that the two persons could not properly be said to be accused persons, and, therefore, there was no provision of law which could make their evidence inadmissible.

It seems to me to follow clearly from these rulings that when the two cartmen were examined they were not accused persons, and their evidence was admissible. Having been subsequently made accused persons, their evidence could not, of course, be used against themselves. That is expressly provided in section 132 of the Evidence Act, which lays down that while a witness shall not be excused from answering questions upon the ground that the answers may incriminate him at the same time no such answer which a witness shall be compelled to give shall subject him toany arrest or prosecution, or be proved against, him in any criminal proceeding except a prosecution for giving false evidence by such answer. The evidence, however, has not been used against the two cartmen, and, therefore, there has been no violation of section 132 of the Evidence Act.

It is quite true that the Court cannot do indirectly what is directly prohibited by the law, and, therefore, if the practical effect of what was done would be to prejudice the accused the trial would be vitiated. I find myself unable to hold, however, that there has been a prejudice or miscarriage of justice. The Magistrate says that he excluded the evidence of the two eartmen altogether from consideration. Let us assume that be could not put it completely out of his mind. The question then is whether upon the remaining evidence the Court could properly have held that the guilt of the accused was not established. I have already indicated my view that the evidence of (p.ws 3, 4 and 6) amply establishes the contravention by the eartmen of the Government order. There is, therefore, no question of any prejudice or miscarriage of justice. Had the two eartmen never been examined as witnesses, the result of the trial must have been exactly the same.

There remains the question raised under rule 130 of the Defence of India Rules. True, there was no written report in writing in which the eartmen were made accused, but there was a full report in writing by the police of the facts constituting the contravention. Cognizance is taken of cases, not persons. In the present case cognizance was taken of the case by the learned Sub-divisional Officer, and he did so upon a report which fulfilled the conditions specified by rule 130. I pointed this out in Emperor v. Rameshwar Lal*. The same thing was pointed out by a Full Bench of the Rangoon High Court in Nga Chan Tha v. Emperor. There, referring to section 190 of the Code of Criminal Procedure, the learned Chief Justice said: “It is to be noted that the section provides that cognizance may be taken of any offence and that no reference is made to the offender. Indeed the identity of the offender is in no way involved, for a complaint may be presented with a view to action being taken against some person or persons unknown. When, therefore, proceedings are initiated on a complaint, or on a police report, the Magistrate can legally take cognizance of the offence and the requirements of section 190 of the Code are complete.”

But it is said as against the eartmen cognizance was taken not by the Sub-divisional Officer but by Mr. Sarkar. The trial Magistrate had no jurisdiction to do so. That is not the case. Once cognizance of the case had been properly taken by the Sub-divisional Officer and the case had been transferred to Mr. Sarkar under section 192 of the Code of Criminal Procedure, then the latter Magistrate had full seisin of the case and was at liberty to summon any further persons as accused if he found evidence against them. The whole case must be taken to have been transferred, that is, the case as against not merely the persons actually summoned but also as against all others whom the transferee Magistrate might consider to be implicated in the offence: see Hafizar Rahaman v. Aminul Haque.

A Division Bench of this Court has also pointed out that cognizance is taken of an offence, and not of individual offenders: see Mathura Singh v. King-Emperor. In that case the Court went so far as to hold that even where the transferring Magistrate had stated that his intention was only to transfer the case as against the persons summoned by him that made no difference. The intention of the transferring Magistrate once he transfers the case is irrelevant.

Mr. Mazumdar further argues that portion of the First Information is a report of a confession to the police by the cartmen. This must be excluded, and if it be excluded there is no sufficient report of the facts. I do not agree that if it be excluded, there is no report of the facts. The facts are reported independently of the statement said to have been made to the police by the cartmen. But apart from that, I see no reason why the complete report should not be used as a report of the facts under rule 130 or section 190 of the Code of Criminal Procedure for the purposes of giving the Sub-divisional Officer jurisdiction to take cognizance of the case. Section 25 of the Evidence Act only says that such a confession cannot be proved against the accused. The judgments of the Courts, below show that the statements of the cartmen reported in the First Information have not been used against the accused in any way. The finding that the cartmen were crossing the border has been based on the evidence of the witnesses, and not on any statement made by them to the police.

In short, the acquittal by the learned Judge cannot be justified, and the appeal must be allowed and the convictions made by the learned Magistrate be restored. At the same time it seems to me that these cartmen were not the persons chiefly responsible for breach of the Government order. The main culprits and those deserving a severe punishment would be the persons under whose orders these simple cartmen were acting. The case has now become very stale, the breach of the order having taken place more than two years ago. No severe punishment of the respondents is, therefore, either necessary or desirable. The Provincial Government, no doubt thought it necessary to file this appeal not so much to secure punishment of the cartmen as to get an authoritative decision upon the important points of law involved. It seems that these cartmen have actually undergone 23 days' imprisonment after their convictions. In my opinion, that is sufficient to meet the ends of justice.

In the result, therefore, while allowing the appeal and convicting the appellants under rule 81(4) of the Defence of India Rules, I would impose a sentence of only 23 days' rigorous imprisonment each, that is to say, the imprisonment already undergone. The respondents should, therefore, now be discharged.

Bennett, J.:— A number of important points of law have been raised in this appeal upon which I should ordinarily have felt it desirable to state my own reasons for concurring in the order proposed by my learned brother, but I find myself so fully in agreement with the views which he has expressed that any expression of my own views would be merely repetition. I can, therefore, restrict myself to saying that I agree with the views on the law expressed by my learned brother and with the order proposed by him.

Order accordingly.

K.D