Henry Wakefield And Others v. Haran Sardar Opposite Party.

The Petitioners Wakefield, Gomes and Meher Ali have been convicted under sec. 323, I.P.C, of the voluntarily causing hurt to the complainant Haran sardar, and have been sentenced each to 3 months' rigorous imprisonment. The fourth Petitioner, D.S Smith, has been similarly sentenced for abetting the said offence by instigation while present. The case was tried by a Bench of two Honorary Magistrates of Calcutta, Messrs Tremearne and Zemin. The Magistrates being divided in opinion, that of My. Tremearne prevailed as he had been chosen Chairman of the Bench for the day by the Chief Presidency Magistrate, and in accordance with the rules framed by the Chief Presidency Magistrate in the year 1900, the opinion of the Chairman was to prevail in case there was a difference of opinion between two Magistrates constituting a Bench.

No appeal lies in this case, nor was the Bench empowered to refer the case to the Chief Presidency Magistrate, as is the rule in Bombay. Even as regards the High Court the enactment that the opinion of the senior Judge should prevail in cases where there was a difference of opinion between two Judges, was abrogated more than 30 years ago. We think that Rule 8 of the Rules framed under sec. 21 of the Code of Criminal Procedure is inconsistent with the Code in so far as it directs that in a Bench composed of two members the decision of the Chairman shall prevail. Such a rule is moreover arbitrary and not consonant with natural justice, because the conviction of an accused person is thus made to depend upon the fortuitous choice of the Chairman by the Chief Presidency Magistrate. In this view we were prepared to order a new trial. Mr. Jackson for the Petitioners has however pressed us to consider the evidence ourselves and to come to a decision upon the merits. We have acceded to his request, and in the result we have no hesitation, in holding that Mr. Tremearne is right, and we are unable to understand why Mr. Zemin should have thought there was any reasonable doubly as to the guilt of the accused. The evidence of the inured man and of his companion Ebrahim is quite satisfactory, and as the Petitioners were well-known to, there and the assault took place near an electric light there was no difficulty in identifying the man. Their evidence is strongly corroborated by that of Ashutosh Dutt, a stranger to them who was travelling in the tram with them and who believes that Smith was the man who gave the order and the other three Petitioners were the men who committed the assault, though naturally he is not prepared to swear positively to their identity. He seems to have no doubt as to the presence of the witness Ebrahim, and that is an important point, because we do not see why Ebrahim and the complainant should be doubted, when they could plainly see their assailants and when they made no delay in lodging information against them at the thana.

As regards the alibi set up by Smith we think with Mr. Tremearne that the evidence does not go far enough and that there was nothing to prevent Smith from driving to the Esplanade and being present at the stated time of the assault. The assault was no doubt a cowardly one, but as the injuries were not at all serious we think that justice may be done by imposing substantial fines in stead of remitting the Petitioners to jail.

We hold that the Petitioner Smith is guilty of an offence punishable under sec. 323 read with sec. 114 of the Penal Code, and the other Petitioners are guilty under sec. 323. We direct that Smith do pay a fine of Rs. 150, and Wakefield, Gomes and Meher Ali a fine of Rs. 50 each. In default of payment we order one month's rigorous imprisonment. Out of the fines when realised the sum of Rs. 200 will be paid to the complainant Harap Sardar as compensation for injuries sustained and expenses incurred in the prosecution.

Convictions upheld: Sentences reduced.