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HIGH COURT OF CALCUTTA
CHAKRABARTI, DAS GUPTA
SUDHINDRA NATH DUTT - Appellant
Versus
STATE - Respondent
Criminal Appeal 12 Of 1955
Decided On : JULY 05, 1957
CRIMINAL LAW - Trial - Judge's previous connection with case - Whether trial invalid - Principles applicable - Distinction between objection taken at commencement of trial and objection taken after trial concluded - Judicial policy.
Fact of the Case:
The appellant, Sudhindra Nath Dutt, was convicted by Sen J. at a Sessions trial held on the Original Side of the Calcutta High Court on a charge under Section 120-B, read with Sections 477a and 408 of the Indian Penal Code and seven other charges of specific offences under Section 477a. The verdict of the jury was divided in the proportion of 6 to 3. The appellant was sentenced to rigorous imprisonment for four years on the first count, but no separate sentence was passed on the remaining counts. The appellant appealed to the High Court, which dismissed the appeal summarily except for the present appeal, which was admitted because of new material placed before the Court at the hearing of the application for admission.
Finding of the Court:
The High Court held that the trial was not invalid as a matter of law simply because it was presided over by Sen J., who had had previous connection with the case. The Court also held that the principle to be followed when an objection is taken at the commencement of a trial cannot be applicable when an objection is taken at the end of it. The Court further held that the appellant's apprehension that he may not have a fair trial, which he had expressed at the commencement of the trial, was no longer being pressed by him in the appeal, and that there were no indications of mistrial in the record of the proceedings. The Court also held that the fact that the Supreme Court had refused to grant special leave in an appeal from the appellant's conviction in another case, where the trial was held in the same circumstances and by the same Judge, was not a sufficient reason for upholding the trial in the present case.
Issues: 1. Whether the trial was invalid as a matter of law because it was presided over by Sen J., who had had previous connection with the case? 2. Whether the principle to be followed when an objection is taken at the commencement of a trial is applicable when an objection is taken at the end of it? 3. Whether the appellant's apprehension that he may not have a fair trial, which he had expressed at the commencement of the trial, was still being pressed by him in the appeal? 4. Whether there were any indications of mistrial in the record of the proceedings? 5. Whether the fact that the Supreme Court had refused to grant special leave in an appeal from the appellant's conviction in another case, where the trial was held in the same circumstances and by the same Judge, was a sufficient reason for upholding the trial in the present case?
Ratio Decidendi: 1. The Court held that the trial was not invalid as a matter of law because it was presided over by Sen J., who had had previous connection with the case, because: a. Section 556 of the Code of Criminal Procedure, which provides that no Judge shall try any case in which he is "personally interested," does not apply to the facts of this case, as Sen J.'s previous connection with the case was more or less of a formal character and did not create in him any bias or predisposition against the appellant. b. The distinction between a passive interest and an active interest, as recognized by the Supreme Court, applies to this case, and Sen J.'s previous connection with the case was only a passive interest, which does not disqualify him from holding the trial. c. The appellant has not complained that Sen J.'s previous connection with the case had actually created in him a bias which had come to be reflected either in his conduct of the proceedings or in the charge which he delivered to the jury. 2. The Court held that the principle to be followed when an objection is taken at the commencement of a trial cannot be applicable when an objection is taken at the end of it, because: a. After the trial has been held and has resulted in a conviction, it can be held to have been invalid only if the trying Magistrate or the trial Judge was debarred by some positive provision of law from holding the trial or if it can be shown that he had exhibited some bias which had actually affected the fair conduct of the proceedings and prejudiced the accused. b. In the present case, the appellant has not alleged that Sen J. exhibited any bias which prejudiced him, and therefore the trial cannot be held to have been invalid. 3. The Court held that the appellant's apprehension that he may not have a fair trial, which he had expressed at the commencement of the trial, was no longer being pressed by him in the appeal, because: a. The appellant did not take any steps to challenge the trial Judge's decision to overrule his objection at the commencement of the trial. b. The appellant did not allege in the appeal that Sen J. had exhibited any bias which prejudiced him. 4. The Court held that there were no indications of mistrial in the record of the proceedings, because: a. The appellant did not point to any specific instances of mistrial in the record. b. The Court's own review of the record did not reveal any indications of mistrial. 5. The Court held that the fact that the Supreme Court had refused to grant special leave in an appeal from the appellant's conviction in another case, where the trial was held in the same circumstances and by the same Judge, was not a sufficient reason for upholding the trial in the present case, because: a. The Court did not have access to the application for special leave and therefore could not know what contentions had been urged before the Supreme Court or on what grounds the Supreme Court had refused to grant special leave.
Final Decision: The appeal was dismissed.
( 1 ) THE appellant Sudhindra Nath Dutt was convicted by Sen J. , at a Sessions trial held on the Original Side of this Court on a charge under Section 120-B, read with Sections 477a and 408 of the Indian Penal Code and seven other charges of specific offences under Section 477a. The verdict of the jury was divided in the proportion of 6 to 3. The learned Judge sentenced the appellant to rigorous imprisonment for four years on the first count, but as regards the remaining counts, he did not pass any separate sentence.
( 2 ) THE offences charged against the appellant were alleged to have been committed by him in his capacity of Managing Director of a bank, called the Calcutta Commercial Bank. He was an accused in several other trials held at the same sitting of the Criminal Sessions for other offences alleged to have been committed in connection with the affairs of the same bank. At all those trials he was further convicted and the sentence passed on one of the convictions was rigorous imprisonment for seven years.
( 3 ) THE appellant preferred separate appeals to this Court from his several convictions. All his appeals were dismissed summarily except the present appeal. The present appeal was admitted because although a common ground had been taken in all the appeals that the learned trial Judge having had some previous connection with the case in another capacity, ought not to have presided over the trial, some material in support of that contention was for the first time placed before the Court at the hearing of the application for the admission of the present appeal which came to be heard last.
( 4 ) AGAINST the dismissal of his other appeals by this Court, the appellant applied for leave to appeal to the Supreme Court. Leave was not granted. The appellant thereafter applied to the Supreme Court for special leave and so far as our information goes, he made such an application also with respect to the case in which a sentence of seven years' rigorous imprisonment had been passed upon him. Special leave was refused.
( 5 ) AFTER the present appeal had been admitted and when the preparation of the paper book had made some progress, the appellant sent an application or rather a letter from jail by which he represented that he was not desirous of prosecuting the appeal further and, therefore, the appeal might be struck out. He was informed in reply that inasmuch as he had a solicitor on record, no personal representation by him could be entertained and that if he desired to make any prayer to the Court, he should do so by means of an application filed through the Solicitor in the ordinary way. An application was thereafter filed and a learned Advocate of this Court was briefed by the appellant to appear in support of the application. The State also was given notice and appeared at the hearing. The prayer in that application was that the appellant might be permitted to withdraw the appeal or it might be struck out, as he did not desire to proceed with the appeal any further. We rejected that application because, in our view, after a criminal appeal had been filed, it became the duty of the! appellate court to hear and determine the appeal on its merits and the appeal could neither be allowed to be withdrawn, or be struck out on the ground that the appellant did not desire to proceed with it.
( 6 ) UPON the completion of the paper book the appeal was placed before us for hearing after the usual notices to both the appellant and the State had been given. The State appeared in the appeal through Mr. Gupta Bhaya. None appeared on behalf of the appellant, but his Solicitor was present in court at the commencement of the hearing and wished to place before us a letter which he had received from his client. We allowed him to place the letter Before us and it appeared that the appellant had instructed the Solicitor not to take any further part in the appeal and at the same time had discharged him from his employme
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