# RONALD WOOD MATHAMS v. STATE OF WEST BENGAL

- **Citation:** [1955] 1 S.C.R. 216
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Criminal Appeals Nos. 9, 13, 14 and 15 of 1952
- **Bench:** Mehr Chand Mahajan C.J, s. R. DAS, Bhagwati, Jagannadhadas, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ronald-wood-mathams-v-state-of-west-bengal-375
- **Pages:** 9

## Headnote

Code of Criminal Procedure (Act V of 1898), s. 257-Absence of
opportunity to produce defence evidence-Effect of-Court's duty in
this respect.
If for no fault of the accused
reasonable
opportunity has not
been
given to him to adduce his evidence under the imperative
provisions of s. 257 of the Code of Criminal Procedure,
1898, there
is no fair trial ·and the accused cannot be convicted,
even though
the
prosecution
evidence
by itself may tend to establish a strong
case against him.
Rules of procedure designed to ensure justice
must
be
scru·
pulously observed and Courts should be jealous in seeing that there
is no breach of them.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeals Nos. 9, 13, 14 and 15 of 1952.
Appeal on transfer after grant of Special Leave by
Privy Council on the 13th November, 1947, from the
Judgment and Order dated the 14th July, 1947, of the
High Court of Judicature at Calcutta in Criminal
Appeal No. 350 of 1946 and Appeals under article 134
(l)(c) of the Constitution of India from the Judgment
and Order dated the 6th September, 1951, of the High
Court of Judicature at Calcutta in Criminal Appeals
Nos. 340, 341 and 351 of 1946 and Government Appeal
No. 19 of 1946.
N. C. Chakravarty, A. K. Mukheriea and Sukumar
Ghose for the appellant in Cr. A. No. 9.
A. K. Basu, ( Ganpa:t Rai, with him) for the appellant in Cr. A. No. 13.
A. K. Dutt and Ganpat Rai for the appellant m
Cr. A. No. 14.
· Sukumar Ghose for the appellant in Cr. A. No. 15.
B. Sen, A. M. Chatterii and P. K. Bose for the
respondents in all the appeals.
t • -
J
' -.
' ).
-
-
\ 1
. ' '
S.C.R.
SUPREME COURT REPORTS
217
1954. April 22. The Judgment of the Court was
delivered by
VENKATARAMA AYYAR J.-These are appeals against
the judgments of the High Court of Calcutta convicting
the appellants on charges of conspiracy to cheat the
Government and of bribery.
The facts, so far as they
are
material, may
be briefly stated. The appellant,
S. K. Dutt, carried on business as a building contractor
under the name and style of British India Construction
Company. This firm had a branch at Asansol which
was, at the material dates, in charge of the appellant,
J. K. Bose. In May, 1942, the military took up construction of dumps and roads in this area, and the
appellant, R. W. Mathams, who was the Garrison
Engineer at Asansol, was put in charge of it, and the
·appellant, P. C. Ghose, was functioning
as overseer
under him. On or about 10th May, 1942, an order was
placed with S. K. Dutt for the construction of dumps at
a place called Burnpur near. Asansol. The works were
executed in June and July 1942, and sums amounting
to Rs. 1,74,000 were paid to S. K. Dutt on account
therefor. The case for the prosecution is that this
amount was in excess of what was due to him for works
actually done,
by about Rs. 56,000,
and that with a
view to avoid the refund of this excess, the appellants
entered into a conspiracy, under which S. K. Dutt was
to prefer a claim for construction of roads purported to
have been carried out in execution of an order which
R. W. Mathams was to issue; P. C. Ghose was to
measure the road so claimed to have been constructed,
and the bill was to be passed for an amount exceeding
what had actually been paid. In accordance with this
scheme,
S. K. Dutt wrote Exhibit 19 on 28th January,
1943,
claiming payment for "additional work within
the store dump· area" ; R. W. Mathams passed an order
bearing date 7th July,
1942, Exhibit 10, placing an
order with S. K. Dutt for the construction of roads ;
P. C. Ghose prepared
the final bill, Exhibit 6, for
· Rs. 1,89,458-14-0 on 15th. March, 1943, and the same
was passed by R. W. Mathams. It is stated for the
prosecution that the ·roads ·alleged to have been cons-
: tructed by
the appellant;
S. K. Dutt, were, in fact,
1954
Ron"aid Wood
Mathams
v •
. Stat•· of West
Bengal.
V enkatarama
Ayyar J.
•95~
·Ronald 'Wood
Matkams
- 'V.
State of 1West
Bengal.
-·
Venkataramo
Ayyarj.
•
218
SUPREME COURT REPORTS
[1955']'
constmoted by t

## Text

216
SUPREME COURT REPORTS
RONALD WOOD MATHAMS
v.
STATE OF WEST BENGAL.
(With connected Appeals)
[1955]
[MEHR CHAND MAHAJAN C.J., s. R. DAS, BHAGWATI,
JAGANNADHADAS and VENKATARAMA AYYAR JJ.]
Code of Criminal Procedure (Act V of 1898), s. 257-Absence of
opportunity to produce defence evidence-Effect of-Court's duty in
this respect.
If for no fault of the accused
reasonable
opportunity has not
been
given to him to adduce his evidence under the imperative
provisions of s. 257 of the Code of Criminal Procedure,
1898, there
is no fair trial ·and the accused cannot be convicted,
even though
the
prosecution
evidence
by itself may tend to establish a strong
case against him.
Rules of procedure designed to ensure justice
must
be
scru·
pulously observed and Courts should be jealous in seeing that there
is no breach of them.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeals Nos. 9, 13, 14 and 15 of 1952.
Appeal on transfer after grant of Special Leave by
Privy Council on the 13th November, 1947, from the
Judgment and Order dated the 14th July, 1947, of the
High Court of Judicature at Calcutta in Criminal
Appeal No. 350 of 1946 and Appeals under article 134
(l)(c) of the Constitution of India from the Judgment
and Order dated the 6th September, 1951, of the High
Court of Judicature at Calcutta in Criminal Appeals
Nos. 340, 341 and 351 of 1946 and Government Appeal
No. 19 of 1946.
N. C. Chakravarty, A. K. Mukheriea and Sukumar
Ghose for the appellant in Cr. A. No. 9.
A. K. Basu, ( Ganpa:t Rai, with him) for the appellant in Cr. A. No. 13.
A. K. Dutt and Ganpat Rai for the appellant m
Cr. A. No. 14.
· Sukumar Ghose for the appellant in Cr. A. No. 15.
B. Sen, A. M. Chatterii and P. K. Bose for the
respondents in all the appeals.
t • -
J
' -.
' ).
-
-
\ 1
. ' '
S.C.R.
SUPREME COURT REPORTS
217
1954. April 22. The Judgment of the Court was
delivered by
VENKATARAMA AYYAR J.-These are appeals against
the judgments of the High Court of Calcutta convicting
the appellants on charges of conspiracy to cheat the
Government and of bribery.
The facts, so far as they
are
material, may
be briefly stated. The appellant,
S. K. Dutt, carried on business as a building contractor
under the name and style of British India Construction
Company. This firm had a branch at Asansol which
was, at the material dates, in charge of the appellant,
J. K. Bose. In May, 1942, the military took up construction of dumps and roads in this area, and the
appellant, R. W. Mathams, who was the Garrison
Engineer at Asansol, was put in charge of it, and the
·appellant, P. C. Ghose, was functioning
as overseer
under him. On or about 10th May, 1942, an order was
placed with S. K. Dutt for the construction of dumps at
a place called Burnpur near. Asansol. The works were
executed in June and July 1942, and sums amounting
to Rs. 1,74,000 were paid to S. K. Dutt on account
therefor. The case for the prosecution is that this
amount was in excess of what was due to him for works
actually done,
by about Rs. 56,000,
and that with a
view to avoid the refund of this excess, the appellants
entered into a conspiracy, under which S. K. Dutt was
to prefer a claim for construction of roads purported to
have been carried out in execution of an order which
R. W. Mathams was to issue; P. C. Ghose was to
measure the road so claimed to have been constructed,
and the bill was to be passed for an amount exceeding
what had actually been paid. In accordance with this
scheme,
S. K. Dutt wrote Exhibit 19 on 28th January,
1943,
claiming payment for "additional work within
the store dump· area" ; R. W. Mathams passed an order
bearing date 7th July,
1942, Exhibit 10, placing an
order with S. K. Dutt for the construction of roads ;
P. C. Ghose prepared
the final bill, Exhibit 6, for
· Rs. 1,89,458-14-0 on 15th. March, 1943, and the same
was passed by R. W. Mathams. It is stated for the
prosecution that the ·roads ·alleged to have been cons-
: tructed by
the appellant;
S. K. Dutt, were, in fact,
1954
Ron"aid Wood
Mathams
v •
. Stat•· of West
Bengal.
V enkatarama
Ayyar J.
•95~
·Ronald 'Wood
Matkams
- 'V.
State of 1West
Bengal.
-·
Venkataramo
Ayyarj.
•
218
SUPREME COURT REPORTS
[1955']'
constmoted by the military, .and .that the order of
R. W. Math.ams bearing date 7th July, 1942, was,. ih
.fact, .brought .into
existence sometime in March, 19.43. It
.is further stated for the prosecution that as
considera~
tion for passing the above bill, a bribe of Rs. 30,000
was agreed to be paid to · R. W. Math.ams and to
P. C. Ghose, that S. K. Dutf sent that amount by,
cheque to J. K. Bose on 16th. March, 1943, apd that on
17th March, 1943, R. W. Math.ams was paid Rs. 18,000
and P. C. Ghose Rs. 12,000 as illegal gratification. The
appellants were
accordingly charged
with conspiracy
to cheat the Government and bribery.
The appellants denied the conspiracy. They stated
that the
roads
had,
in fact,
been
constructed by
S. K. Dutt. With reference to the cheque
for Rs. 30,000,
the case of S. K. Dutt and P. C. Ghose was .that the
arnonl'lt was required for payment to
sub-contractors,
who had constructed the roads under S. K. Dutt, and
.that it was, in fact, utilised for that purpose. They
pr.oduced Exhibit 27 series, which are receipts purporting to have been signed by the several sub-contractors.
The Special Tribunal wruch tried the case, delivered
its judgment on 9th May, 1946, acquitting the appellants on the charge of conspiracy but convicting them
for the offence .of bribery. Appeals against this judgment were taken to the High Court of Calcutta by the
appellants against their conviction ·On the charge of
bribery and by the Government against the acquittal
on the charge of conspiracy. By their judgment dated
14th July,
1947, the learned Judges (Clough and Ellis
JJ.)
dismissed
the appeals of the appellants, and
allowed that of the · Government. In ·the result, the
appellants stood convicted on the charges both of
conspiracy and bribery.
R. W. Math.ams applied to the Privy Council for
special leave to appeal, and and .by an order dated 13th
November, 1947, the appeal was admitted only on the
question whether the prosecution was bad for· want of
sanction under section 197 of the Criminal Procedure
Code.
The appellants, S. K. Dutt, J. K. Bose and
P. C. Ghose, appealed to the federal Court under a
certificate · under section 205 of the Government of
-
·'- ).
•
. '
' ....
1
S.C.R.
SUPREME COURT REPORTS
219
India Act, and as -rhe order passed in their appeal forms
the foundation of the argument in the present appeals,
it becomes necessary to refer to it in some detail.
One of the grounds argued by the appellants in the
Federal Court was that the requirements of section 257
of the Criminal Procedure Code had not been complied
with, and that there was accordingly no fair trial. The
facts on which this objection was based are these : The
complaint was instituted on 7th June, 1945. The examination of witnesses on the side of the prosecution
commenced on 6th September, 1945, and it was concluded after undergoing several adjournments on 29th
March, 1946.
On 27th March,
1946,
the
appellant,
J. K. Bose, filed a list of 15 witnesses to be examined
for the defence.
Most of them were persons who are
-.
alleged to have given the receipts,
Exhibit 27 series,
acknowledging payment of money for construction of
works done by them. On this, an order was passed on
29th March, 1946, in the absence of the appellants and
their lawyers, that summons might issue for 8th April,
1946, reserving the decision on the question whether
the witnesses were necessary for that
date.
Summons
was not sent in the manner prescribed by sections 68
-
and 69 of the Code but by ordinary post. When the
case was taken up on 8th April, 1946, it was found that
two of the envelopes had returned from the Dead
Letter Office, and as to the rest, there was nothing to
show what had happened to them. In this situation:.
the Tribunal passed an order that no further process
would issue, and the case was then decided on the evidence on record, and the appellants convicted on the
.. charge of bribery.
On these facts, it was contended before the Federal
Court that the procedure adopted by the Tribunal was
in contravention of section 257 of the Code, . and
amounted to a serious irregularity. In upholding this
objection, the Court observed that section 257 was
imperative in its
terms, that process could not be
refused except for the reasons mentioned therein, that
;
no such reasons existed, and that the order of the Tri-
. - bunal, dated 8th April, 1946, refusing to issue procesa
was accordingly illegal. It was further observed that
15-86 S. C. India/59
1954
Ronald Wood
Mathams
v.
State of West
Bengal.
V enkataramo
.dY.)'ar ],
1954
'Jlonald Wood
·Mathams
·'V·
.St"at.e of Wist
.&igiil.
·.Vmkatcirama
~)'llr J·
220
SUPREME COURT REPORTS
[1955)
the .witnesses ·cited would be .material, because their
evidence; if accepted,
would establish that Exhibit 27
series
were genuine, .and that .this
would militate
against the case of the prosecution in respect of both
the .charges .. of conspiracy and bribery. The Court
accorillngly set aside . the convictions, and directed .that
.the appeal should .be re-heard "after giving a reasonable oppor.tunit}' to the .appellant No. 2 (J. K. Bose)
te
take such steps as he may be entitled to take in law for
enforcing the attendance of the witnesses mentioned in
.the list .of .the 27th March, and after considering the
evidence of such of these witnesses as may appear before the Court."
This
judgment was passed on 23rd April, 1948.
Whm the matter went back to the High :Court .of
Calcutta in pursuance -0£ this judgment, an ·order was
passed by that Cour.t on 2nd August, 1948, adjourning
the hearing of the .appeals till the disposal .of the appeal
of R. W .. Mathams by the Privy Council. Then came
.the Independence of India, and the appeal of R. W.
Mathams was eventually transferred from the P!'iyV
.Council to ithis Court for disposal. .As information
·concerning the exact position of the appeal .of R. W.
:Mat.barns ·was for csorrie time lacking, ·and as the prospect of .that appeal being :heard appeared
distant,
the
High ·Court passed :an order. on 9th April, il951, d1at
the ~emanded appeals w.ould be 1taken up for hearing
on Hth June, 1951, lthat 1the appellants should take the
;necessary ~teps for examination uf the witnesses mentioned ·in the [ist, dated 21'.th March, · il.946, and ·that
the office :should take steps to .secure the attendance of
+ j
those witnesses, except one who was in E11st Pakistan. ,I
The list :was -acco~dingly .filed .on 8th May, 19'51. There-
~ ,
in, it :was
stated tihat .out of lthe 15 persons whose
names :were mentioned m .the list, idated 27th March,
1946, .it' \Was possible to get .the addr.ess of only six perS!lllll, :and ,that as for the .rest, it was not possible -to
trace .their ;whereabouts, as the¥ had mostly migrated
t!l Asans0l at .the· .time when .the works were being exe-
·CU'iied .. and .,had since :left that ,plac.e. Out .of the six
persons -.yhose . addresses were give11,
R ~; Mukherjee
aad R. K •. Paul, ·. were·
s~r.ved :anq ·examined .in .Court.
-
S.C.R.
SUPREME COURT REPORTS
221
.•
..
~-- -
r
A third witness was given up, as he . was a handwriting expert. The fourth witness Liakat Hossain, had
migrated to East Pakistan, and no process could be
issued against him. Another witness, Sanichar Mistry,
had died in the hospital As :regards the sixth witness,
Sashinath De, the endor.sement on the summons was
that he .had :left the place, and that it was not known to
which place he had gone. The learned Judges who
· i
heard the appeai on :remand held by their judgment,
-
dated 6th September, 1951, that on the evidence both
the "Charges of conspiracy and bribery had been established, and convicted the appellants, S. K. Dutt, J. K.
Bose .and P. C. Ghose, under the appropriate sections.
The matter comes before us on special leave under a
certificate of the High Court under article 134(c) of
. .J.
the Constitution.
"'
The argument in support -0f these appeals is that the
trial -0f the appellants had been vitiated by reason
of
the fact that -they had no reasonable opportunity to
examine their witnesses, and that their convictions
were
acc<:>rdingly bad. We think that this complaint
is well-founded. By its judgment, dated 23rd April,
1948, the Federal Court decided that the order of the
..,. Tribunal, dated 8th April, 1946, declining to issue process
for the witnesses mentioned in the list, dated 27th
March, 1946, was in contravention of section 257 of
the Criminal Procedure Code, that the evidence of those
witnesses would be
material for
refutation of the
charges of both
-conspiracy
and -bribery, and that
accordingly the appellants should be granted an opportunity to examine those witnesses. On this order, the
/'.
only question that has to be decided is whether the
~
" appellants got such an opportunity when the appeal
was re-heard in pursuance of the order of remand. The
important point t-0 be noted is that by reason of the
order of the High Court, dated 2nd August, 1948, the
appeal was not taken up for hearing immediately as it
ought to have been, and that it was only on 8th May,
1951, that it was possible for the appellants to take
.
.steps in the matter. But by that time, the situation
,i._ " :had undergone a radical change. In their application,
the appellants stated· that. the whereabouts of most of
1954
Ronald Wood
Mathams -
v.
State af W <.rt
· !Jengal.
V:enkatarama
~yyarJ.
'9,54.
Ronald Wood
Mathams
.
"·
Stat1 of West
:Be~gal;
Yankatarama
l!J.)'ar J'
lZZ·
SUPREME COURT REPORTS
[1955}
•. :..
the witnesses could not be traced, and this is not to be
wondered at. Burnpur, where
the works had to be
executed, is a petty township situated in a corner of.
the State, and it sprang into prominence only owing
to
military activities.
Contractors
and sub-contractors
flocked to that place from all sides for executing the
military works, and ther.e is
nothing improbable in
their having left the place when the situation changed,
-T
as it did on the conclusion of the war by the end of
l
1945. And there arose a further complication.
In
1947, two Dominions came into being as a result of the·
Indian Independence Act, and there was a partition of
Bengal. It is not unlikely that some of these contractors belonged to East Pakistan or had settled there.
That the list of witnesses given on 27th March, 1946,
was not all fictitious is borne out by the fact that two
~
of them actually gave evidence at the re-hearing and
a third had died in the hospital. When some of the
witnesses mentioned in the list are proved to be real
persons,
there are no materials on which it can be
affirmed that the others are fictitious persons. Indeed,
the evidence of the two witnesses, Mukherjee and Paul,
is that they
had seen some of those
sub-contractors
whose names appear in Exhibit 27 series, actually at ~
work
there. The learned Judges have rejected their
evidence on the ground that they are not men of
status ; but on the question whether the appellants
had made payments to the sub-contractors under Exhibit 27 series, the best evidence can only be of those
persons. It may be that the two witnesses are not speaking the truth when they say that they saw the other
persons mentioned in the list working on the roads, _r
and it is possible that those persons are fictitious. But ·
it is equally possible that they are real persons, whose
whereabouts could not be traced in the exceptional
circumstances which had intervened.
As
admittedly
three of them are real, it would be unsafe to act on the
view that the others must be fictitious, and if they are
re~l persons who could not be examined for no fault of
the appellants, grave injustice would result in the accu-
.
sed being
condemned without the evidence of these "-J
witnesses having been taken. For this situation, the
•
•
-.
-
S.C.R.
SUPREME ·COURT -REPORTS
223
appellants are not to blame. That was the result of
the erroneous order passed by. the _ Tribunal on 8th
April, 1946, refusing to issue process and the order of
~he High Court, dated 2nd August, 1948, adjourning
the appeal, till the disposal of the appeal of R. W.
Mathams.
In coming to the conclusion that the guilt of the
~
appellants
had been established,
the learned
Judges
were greatly influenced by the correspondence relating
to the passing of the bill, - in particular the letter of
S. K. Dutt, dated 23rd January,
1943, Exhibit 18, by
the long interval between the completion of the work
which was in July,
1942, and the alleged payments
under Exhibit 27 series which were after 17th March,
1943, and by various other circumstances, which pro-
"'
babilised
the
case
for the prosecution.
It must be
conceded that the evidence on record tends to establish a strong case against the appellants.
But then,
that is a case which they are entitled to rebut, and if,
as was held by the
Federal
Court, Exhibit 27 series
would furnish
good
material for rebutting that case,
the Court, by
declining to issue
process for
the
examination of
the witnesses connected with those
-·Y
documents, has
deprived the appellants of an opportunity of rebutting it. Whatever one
may think of
the merits of the appellants' contention, they .cannot
be convicted without an opportunity_ being given to
them to present their evidence, and that having been
denied· to them, there has been no fair trial, and the
conviction of the
appellants,
S. K. Dutt, J. K. Bose
and P. C.. Ghose, cannot stand. The result may be
>-\ unfortunate. But it is essential that rules of procedure
designed to ensure justice
should be scrupulously
, followed, and Courts should be jealous in seeing that
. there is no breach of them. The appeals will be
. allowed, and the appellants acquitted.
Then there remains the appeal of R. W. Mathams.
It has been already stated that by an order dated 13th
:November, 1947, the Privy Council gave him special
). ~ : leave to appeal, limited to the question whether the
·
proceedings were bad for want of sanction under section 197 of the -Criminal Procedure Code. By a further
1954
Ronald Wood
Mathams •
v.
State of West
Bengal.
V enkatarama
Ayyar -T'.
r95"4
Rohald.. WO;d
M'atnams
v.
State Of Wtst'
Bing al:
Y tnkatarama
l!yyitr Jc
1954
April 20.
"
"
224
SUPREME COURT REPORTS
[!955~
o~der dated 5tli August,
1948,
the "Privy
council
enlarged the scope of the appeal by permitting the
appellant to raise the contention that there had been
a contravention of section 257 of the Criminal Procedure Code;
These are the two points that arise for
determination in his appeal. The question whetller
sanction under sei;tion 197 wa:s necessary for instituting
proceedings against the appellant on charges of conspiracy and of bribery; is now concluded by the decisions
of the Judicial Committee in H. H. B. Gill v. The
King(') and Phanindra Chandra Neogy v. The King( 2 )'.
and" must be answered in the negative. The question
whether there was contravention of section 257 of the
Criminal Procedure Code
and a denial or fair trial
must, for the reasons" already given, be answered in
the affirmative, and the convictionc of the appellant
set aside on that ground. His appeal will also be
allowed, and there will be an order of acquittal in his
favour~
Appeal allowed.
DHIRENDRA KUMAR MANDAL
v;
THE SUPERINTENDENT AND
REMEMBRANCER OF LEGAL AFFAIRS TO
THE GOVERNMENT OF WEST BENGAL,
AND ANOTHER.
" ~MEHR CHAND
MAHAJAN C.J.,
MuKHERJEA, VMAN
BosE BHAGWATI and VENKATARAMA AYYAR JJ.1
Constitution of
India,
Art. 14--Scope
and construction ofMeanin'g. of reasonable classification-C'rimina/" Procedure Code (A'ct
V of 1898), ss. 269(1), 536-Notification under s. 269(1)-Validity
of-Denial of the right to' be' tried by jury lo certai'n individualsRight retained· in t.he case of other indivi.duals committing the same
or .. si'-rJ:iL:zr offetJces-D~fect i'n tri'al-Wheth-er .cured· bys .. 536.
·Trial by j"Nry
is
undoubtedly one of the most vafuable rig)its
wB.i.Ch an accused· can helve Out it -has .not been; guaranfeed Oy the
ConStii:ufIC!n-.
Sect~on· 269( 1) of the CodC· ·o( Criminal' Procedure· is ..___ )_
an: 'enabling· section and ernp0-Wers, the Stare Government- to. direct
-
"M~IA~
..
00%~~