Ronald Wood Mathams vs State Of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeals Nos. 9, 13, 14 and 15 of 1952

Decision Date: 22 April 1954

Coram: Mehar Chand Mahajan, Natwarlal H. Bhagwati, B. Jagannadhadas, T.L. Venkatarama Ayyar

In the case titled Ronald Wood Mathams versus the State of West Bengal, which involved several connected appeals, the Supreme Court of India delivered its judgment on 22 April 1954. The bench that heard the matter consisted of Justice Mehar Chand Mahajan, Justice Natwarlal H. Bhagwati and Justice B. Jagannadhadas, with Justice T. L. Venkatarama Ayyar presiding over the proceedings. The decision is reported in the 1954 volume of the All India Reporter at page 455 and in the 1955 Supreme Court Reports at page 238, and it is cited in subsequent reports including R 1955 SC 309, R 1960 SC 266, R 1966 SC 220, RF 1967 SC 776 and R 1969 SC 686. The matter concerned the provisions of section 257 of the Code of Criminal Procedure, 1898, dealing with the absence of an opportunity for the accused to produce defence evidence, and the duty of the court to ensure a fair trial. The headnote explains that where the accused is not given a reasonable chance to adduce evidence under this mandatory provision, a fair trial is impossible and a conviction cannot be sustained, even if the prosecution’s case appears strong; procedural rules must be observed scrupulously and courts must be vigilant against any breach. The appeals came under the criminal appellate jurisdiction of the Supreme Court and were numbered 9, 13, 14 and 15 of 1952. They arose from a transfer of cases after the Privy Council granted special leave on 13 November 1947, taking them from a judgment dated 14 July 1947 of the Calcutta High Court in Criminal Appeal No. 350 of 1946, as well as from appeals under article 134(1)(c) of the Constitution of India challenging a judgment dated 6 September 1951 of the Calcutta High Court in Criminal Appeals Nos. 340, 341 and 351 of 1946 and Government Appeal No. 19 of 1946. Counsel appearing for the various appellants included N. C. Chakravarty, A. K. Mukherjea and Sukumar Ghose for appeal 9; A. K. Basu with Ganpat Rai for appeal 13; A. K. Dutt and Ganpat Rai for appeal 14; and Sukumar Ghose for appeal 15, while B. Sen, A. M. Chatterji and P. K. Bose represented the respondents in all the matters. The judgment, delivered by Justice Venkatarama Ayyar, addressed appeals against the Calcutta High Court’s convictions of the respondents on charges of conspiracy to cheat the Government and of bribery. The material facts were summarised briefly: the appellant S. K. Dutt operated as a building contractor under the name British India Construction Company, which maintained a branch at Asansol that, at the relevant time, was managed by the appellant J. K. Bose. In May 1942 the military commenced construction projects in the area, bringing the appellant R. W. Mathams, who was Garrison Engineer at Asansol, into charge of the works, with the appellant P. C. Ghose acting as overseer under him. An order dated around 10 May 1942 directed S. K. Dutt to construct dumps at Burnpur near Asansol; the work was carried out in June and July 1942 and the contractor received payments amounting to Rs. 1,74,000, which the prosecution alleged to include an excess of about Rs. 56,000 over the amount due for the actual work performed. The prosecution’s case further alleged that, to avoid refunding this excess, the appellants entered into a conspiracy in which S. K. Dutt would claim payment for a road that was purportedly built under an order that R. W. Mathams was to issue, while P. C. Ghose would measure the alleged road, thereby fabricating a claim to retain the surplus funds.

In this case, the Court recorded that the military had taken up construction of dumps and roads in the Asansol area, and that R. W. Mathams, who held the position of Garrison Engineer at Asansol, had been placed in charge of that work. The appellant P. C. Ghose served as overseer under Mathams. Around 10 May 1942, an order was issued to S. K. Dutt for the construction of dumps at Burnpur, a location near Asansol. The works were carried out during June and July 1942, and sums totalling Rs. 1,74,000 were paid to S. K. Dutt on account of those works. The prosecution alleged that this amount exceeded the value of the work actually performed by about Rs. 56,000. To avoid refunding the excess, the prosecution claimed that the appellants had entered into a conspiracy. Under the alleged scheme, S. K. Dutt was to submit a claim for the construction of roads that were purported to have been carried out under an order that R. W. Mathams was to issue; P. C. Ghose was to measure the road claimed to have been built, and a bill was to be prepared for an amount larger than what had actually been paid. In accordance with the alleged plan, S. K. Dutt wrote Exhibit 19 on 28 January 1943, claiming payment for “additional work within the store dump area.” R. W. Mathams issued an order dated 7 July 1942, Exhibit 10, directing S. K. Dutt to construct roads. P. C. Ghose prepared the final bill, Exhibit 6, for Rs. 1,89,458‑14‑0 on 15 March 1943, and the same bill was passed by R. W. Mathams. The prosecution asserted that the roads said to have been built by S. K. Dutt had actually been constructed by the military, and that the order of 7 July 1942 had in fact been created only in March 1943. The prosecution further alleged that, as consideration for passing the inflated bill, a bribe of Rs. 30,000 was agreed to be paid to R. W. Mathams and to P. C. Ghose. According to the prosecution, S. K. Dutt transferred that amount by cheque to J. K. Bose on 16 March 1943, and that on the following day R. W. Mathams received Rs. 18,000 and P. C. Ghose received Rs. 12,000 as illegal gratification. The appellants were consequently charged with conspiracy to cheat the Government and with bribery. The appellants denied the existence of any conspiracy and maintained that the roads had indeed been constructed by S. K. Dutt. Regarding the cheque for Rs. 30,000, S. K. Dutt and P. C. Ghose contended that the sum was required to pay subcontractors who had built the roads under the direction of S. K. Dutt, and that the money was actually used for that purpose. They produced Exhibit 27 series, which were receipts allegedly signed by the various subcontractors.

In this case, the Special Tribunal delivered its judgment on 9 May 1946, acquitting the appellants of the conspiracy charge while convicting them of bribery. The appellants challenged the conviction for bribery before the Calcutta High Court, and the Government challenged the acquittal on the conspiracy charge. By its judgment dated 14 July 1947, the learned judges, Clough and Ellis, dismissed the appellants’ appeals and allowed the Government’s appeal, so that the appellants were found guilty of both conspiracy and bribery. R W Mathams then sought special leave to appeal to the Privy Council, and the Privy Council, by order of 13 November 1947, admitted the appeal only on the limited question of whether the prosecution was defective for lack of sanction under section 197 of the Criminal Procedure Code. The same appellants—S K Dutt, J K Bose and P C Ghose—also appealed to the Federal Court under a certificate issued pursuant to section 205 of the Government of India Act; the order issued in that appeal formed the basis of the arguments now before this Court and therefore requires detailed reference. One of the primary grounds raised before the Federal Court was that the Tribunal had failed to comply with the requirements of section 257 of the Criminal Procedure Code, resulting in an unfair trial. The factual background for that objection was as follows: the complaint had been filed on 7 June 1945; the prosecution’s examination of witnesses began on 6 September 1945 and concluded, after several adjournments, on 29 March 1946. On 27 March 1946, J K Bose filed a list of fifteen defence witnesses, most of whom were alleged to have provided the receipts in Exhibit 27 series that purportedly showed payment for work carried out by them. An order dated 29 March 1946, issued in the absence of the appellants and their counsel, directed that summons might be issued for 8 April 1946, while reserving the decision on whether the witnesses were necessary for that date. The summons were sent by ordinary post rather than in the manner prescribed by sections 68 and 69 of the Code. When the matter was taken up on 8 April 1946, two of the envelopes were returned from the Dead Letter Office and the whereabouts of the remaining summons were unknown. Consequently, the Tribunal ordered that no further process would be issued, proceeded to decide the case on the evidence already on record, and convicted the appellants of bribery. On these facts, the Federal Court was urged to hold that the Tribunal’s procedure violated section 257 of the Code and constituted a serious irregularity.

In upholding the objection raised by the appellant, the Court noted that section 257 of the Code was expressed in mandatory terms and that a judicial order could not refuse the issuance of process except for the specific reasons enumerated in that provision. The Court found that none of those enumerated reasons applied to the case at hand, and consequently held that the Tribunal’s order dated 8 April 1946, which refused to issue process for the witnesses, was illegal. The Court further observed that the witnesses listed in the notice would be material because their testimony could confirm the authenticity of the Exhibit 27 series. Acceptance of such evidence would work against the prosecution’s case on both the conspiracy charge and the bribery charge. Accordingly, the Court set aside the convictions that had been recorded against the appellants and directed that the appeal be reheard only after the appellant identified as No. 2, J. K. Bose, was given a reasonable opportunity, as provided by law, to secure the attendance of the witnesses named in the list dated 27 March 1946, and after the Court considered the testimony of any of those witnesses who might appear before it. This judgment was delivered on 23 April 1948. When the matter returned to the High Court of Calcutta in accordance with that judgment, the High Court issued an order on 2 August 1948 adjourning the hearing of the appeals until the appeal of R. W. Mathams before the Privy Council was finally disposed of. After India attained independence, the appeal of R. W. Mathams was transferred from the Privy Council to this Court for final determination. Because the precise status of Mathams’s appeal remained unknown for some time and because its hearing seemed remote, the High Court on 9 April 1951 ordered that the remanded appeals be scheduled for hearing on 11 June 1951, that the appellants be directed to take the necessary steps to examine the witnesses listed in the 27 March 1946 notice, and that the court office be instructed to secure the attendance of those witnesses, except for the one who had relocated to East Pakistan. The list of witnesses was consequently filed on 8 May 1951. In that filing it was stated that of the fifteen persons named in the 27 March 1946 list, the addresses of only six could be ascertained; the remaining nine could not be traced because they had largely migrated to Asansol at the time the works were carried out and had subsequently moved elsewhere. Of the six whose addresses were known, B. C. Mukherjee and R. K. Paul were served with summons and examined in court. A third witness, who was a handwriting expert, was also called. The fourth witness, Liakat Hossain, had migrated to East Pakistan, making it impossible to serve process on him. Another witness, Sanichar Mistry, had died while hospitalized. Regarding the sixth witness, Sashinath De, the endorsement on the summons indicated that he had left the locality and

The Court noted that the record showed no knowledge of the destination to which the sixth witness, Sashinath De, had moved. The judges who had previously heard the appeal on remand, in their judgment dated 6 September 1951, concluded that the evidence presented was sufficient to establish both the conspiracy charge and the bribery charge, and accordingly they convicted the appellants S K Dutt, J K Bose and P C Ghose under the relevant statutory provisions. The present case reached this Court on a certificate of special leave issued by the High Court pursuant to article 134(c) of the Constitution. The appellants raised the contention that their trial had been fundamentally flawed because they had been denied a reasonable opportunity to examine the witnesses listed against them, and that such denial rendered their convictions unsound. The Court agreed that this grievance deserved careful consideration. It recalled the Federal Court’s decision of 23 April 1948, which had held that the Tribunal’s order of 8 April 1946, which refused to issue process against the witnesses named in the list dated 27 March 1946, contravened section 257 of the Criminal Procedure Code. The Federal Court further observed that the testimony of those witnesses would have been material for rebutting the allegations of conspiracy and bribery, and therefore directed that the appellants be afforded a chance to examine them. The only remaining question, therefore, was whether the appellants actually obtained such an opportunity when the appeal was reheard following the remand order.

The Court observed that, owing to the High Court order dated 2 August 1948, the appeal was not taken up for hearing as promptly as it should have been, and it was only on 8 May 1951 that the appellants were able to take any steps in the matter. By that date, the circumstances surrounding the witnesses had changed dramatically. In the appellants’ applications they asserted that the whereabouts of most of the witnesses could not be traced. This difficulty was understandable given that the works in question were carried out in Burnpur, a small township that had risen to importance solely because of wartime military activities. Contractors and sub‑contractors from various regions had converged on Burnpur to execute those works, and it was not improbable that they dispersed from the area after the war ended in late 1945. Further complicating the situation, the partition of Bengal in 1947, following the Indian Independence Act, created two new Dominions, and some of the contractors may have relocated to East Pakistan. The Court noted that the list of witnesses dated 27 March 1946 was not entirely fictitious, as evidenced by the appearance of two of those witnesses at the rehearing and the death of a third in hospital. Consequently, the possibility remained that other persons named in the list were real individuals whose locations could not be ascertained under the exceptional post‑war and post‑partition circumstances.

The Court observed that although some of the persons named in the list of witnesses had been identified as individuals, there was no material on which it could be affirmed that remaining names were fictitious. The evidence of the two witnesses, Mukherjee and Paul, indicated that they had actually seen some of the subcontractors whose names appeared in Exhibit 27 series working on the project. The learned Judges had rejected this testimony on the ground that the witnesses were not men of status. However, concerning whether the appellants had made payments to the subcontractors listed in Exhibit 27, the most reliable evidence could only be obtained from those persons themselves. It remained possible that the two witnesses were not truthful when they claimed to have seen the other individuals named in the list, and those persons might indeed be fictitious. Equally, it was plausible that those individuals were real, but their whereabouts could not be located because of the exceptional circumstances that had intervened. Since three of the persons on the list had been established as genuine, the Court considered it unsafe to presume that the remaining names were fictitious. If the untraced individuals were real and could not be examined through no fault of the appellants, a grave injustice would result from convicting them without that testimony. The Court attributed the difficulty to the erroneous order of the Tribunal dated 8 April 1946, which refused to issue process. It also noted the High Court order of 2 August 1948 that adjourned the appeal until the appeal of R. W. Mathams was disposed of. In reaching the conclusion that the appellants’ guilt had been established, the learned Judges were influenced by correspondence relating to the passage of the bill, particularly the letter of S. K. Dutt dated 23 January 1943 (Exhibit 18). They also considered the interval between the completion of the work in July 1942 and the alleged payments recorded in Exhibit 27 after 17 March 1943, together with other circumstances that probabilised the prosecution’s case. The Court conceded that the evidence on record tended to establish a strong case against the appellants, yet affirmed that they were entitled to rebut that case. Because Exhibit 27 could provide material for rebuttal, the refusal to issue process for examining the witnesses linked to those documents deprived the appellants of a fair opportunity to contest the prosecution’s evidence. Consequently, the Court held that the appellants could not be convicted without being allowed to present their evidence, and the denial of that chance meant that their trial had not been fair. Therefore, the convictions of S. K. Dutt, J. K. Bose and P. C. Ghose could not stand, despite any unfortunate consequences the decision might produce. The Court emphasized that procedural rules designed to ensure justice must be scrupulously observed, and any breach warrants reversal of the judgments.

In this matter the Court emphasized that procedural rules designed to ensure justice must be rigorously observed, and that courts must be vigilant to prevent any breach of those rules. Accordingly the Court ordered that the appeals of the three appellants be allowed and that they be acquitted. The remaining appeal concerned R. W. Mathams. It had previously been noted that on 13 November 1947 the Privy Council granted him special leave to appeal, restricting the issue to whether the proceedings were invalid for lack of sanction under section 197 of the Criminal Procedure Code. Subsequently, on 5 August 1948 the Privy Council broadened the scope of his appeal by authorising him to contend that there had been a breach of section 257 of the Criminal Procedure Code. These two questions were the only matters that required determination in his appeal. The Court observed that the question of whether sanction under section 197 was required to institute proceedings against the appellant for conspiracy and bribery had already been settled by the Judicial Committee in H. H. B. Gill v. The King and in Phanindra Chandra Neogy v. The King, and that the answer to that question was negative. The Court then turned to the second question, namely whether there had been a contravention of section 257 of the Criminal Procedure Code resulting in denial of a fair trial. For the reasons previously set out, the Court found that a breach had indeed occurred, that the trial had not been fair, and therefore the appellant’s conviction must be set aside. Consequently the Court allowed Mathams’ appeal and ordered his acquittal. The appeal was thus allowed.