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Emperor Vs. Narayan Shivram Barve - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 283 of 1907
Judge
Reported in(1907)9BOMLR1385
AppellantEmperor
RespondentNarayan Shivram Barve
Excerpt:
.....for good behaviour-showing cause-accused must be ready, with his evidence-questions to witnesses- disallowed by the court.;the high coart acting in revision, under section 435 of the criminal procedure code, is bound to accept the finding of the lower court unless there is any error of law or procedure vitiating that finding or unless there are any special circumstances apparent on the record to show that in arriving at its conclusion fact the lower court has misapprehended the evidence.;when a person is called upon to show cause why he should not be required to give security for good behaviour, under section 118 of the criminal procedure code he must be ready with his evidence when he appears in obedience to the notice. that is the meaning of the expression 'to show cause'..........for one year. the ground upon which the order has been passed is that, in the opinion of the district magistrate, there has been more than an attempt on the part of the petitioner to disseminate seditious matter within the meaning of section 124, indian penal criminal application for revision no. 281 of 1907 code, by means of two public lectures delivered at gadag.2. it is admitted that some, if not all, of the expressions which the petitioner is found by the magistrate to have used in those lectures are seditious within the meaning of the law. what is urged is that these expressions were not used at all by the petitioner but have been put into his mouth by the police witnesses, on whose evidence the district magistrate has based the order in question. this contention raises a.....
Judgment:

Chandavarkar, J.

1. The petitioner Narayan Shivram Barve, applies for revision of the order passed by the District Magistrate of Dharwar on the 16th of August, directing under Section 118 of the Code of Criminal Procedure that the said Barve do execute a bond with two sureties, himself in a sum of Rs. 300 and each surety in a sum of Rs. 150 for his good behaviour for one year. The ground upon which the order has been passed is that, in the opinion of the District Magistrate, there has been more than an attempt on the part of the petitioner to disseminate seditious matter within the meaning of Section 124, Indian Penal Criminal Application for Revision No. 281 of 1907 Code, by means of two public lectures delivered at Gadag.

2. It is admitted that some, if not all, of the expressions which the petitioner is found by the Magistrate to have used in those lectures are seditious within the meaning of the law. What is urged is that these expressions were not used at all by the petitioner but have been put into his mouth by the police witnesses, on whose evidence the District Magistrate has based the order in question. This contention raises a question of fact as to which this Court, acting in revision, is bound to accept the finding of the lower Court unless there is any error of law or procedure vitiating that finding or unless there are any special -circumstances apparent on the record to show that in arriving at its conclusion of fact the lower Court has misapprehended the evidence.

3. Here it is argued that there are two errors of law and procedure which vitiate the District Magistrate's finding. These are:-(1) that the petitionerhad no sufficient opportunity given him to instruct his pleaders properly and make his defence by citing his witnesses; and (2) that a number of admissible questions which his pleader desired to put in the cross-examination of the witnesses for the Crown was disallowed.

4. As to the first of these objections, the facts are these. Notice calling upon the petitioner to show cause why he should not be required to give security for good behaviour, was served on him at Dhanvar, on the 12th of August. The trial commenced on the 13th, evidence for the Crown was taken on the 13th and 14th; and the petitioner's statement was taken down in writing by the Magistrate on the 14th. It was in the course of this statement that the petitioner asked for time to call his witnesses from Gadag. Questioned by the Magistrate as to the names and number of the witnesses he wished to call, he answered they were 'one or two' but he could not give their names. He said he''only knew their faces'. The Magistrate declined to grant the postponement asked for but adjourned the case to the next day at the request of the petitioner's pleader for a written explanation of the petitioner and hearing arguments.

5. When a person is called upon to shew cause why he should not be required to give security for good behaviour, he must be ready with his evidence when he appears in obedience to the notice. That is the meaning of the expression 'to shew cause in law. If he has been unable to bring the evidence with him on account of the shortness of the notice or other reasonable cause, it is his duty, when he appears, to apply at once for summonses to the witnesses he proposes to call. But here nothing of the kind was done by the petitioner, though he was defended by four pleaders. In the report submitted to this Court the District Magistrate points out that the case was adjourned early on the 13th of August to enable the defence to prepare for the cross-examination of the witnesses; and that 'no com- plaint was made by any of the pleaders about want of time.' The petitioner and his four pleaders waited till the Crown witnesses had been examined and then asked for time to bring his witnesses. Even then he could not name any of them. The District Magistrate reports that 'no pleader raised, far less pressed the point' for postponement and that ' the demeanour of all showed that they thought the witness an imaginary one and this was clear enough from the petitioner's own demeanour.' The correctness of these statements in the District Magistrate's report has not been questioned before us. The question of postponement was one for the Magistrate's discretion. The discretion must indeed be exercised reasonably by him, having due regard to all the circumstances. Under the circumstances of the present case above stated, we are unable to hold that the District Magistrate exercised his discretion unreasonably.

6. The second objection raised before us relates to the questions in cross-examination which are alleged to have been wrongly disallowed by the District Magistrate. What the nature of the questions disallowed was appears from two written applications made by the petitioner to the District Magistrate and forming part of the Magisterial record.

7. The questions which are mentioned in the applications as having been disallowed may be divided into two classes :-

1. Questions not specifically stated or particularised in the application but mentioned generally as relating to certain points, such as 'questions testing the knowledge of the witness regarding the Marathi language &c;', 'questions whether the witness can call to mind the exact sentences in Marathi ''repeated' by the accused, looking to the Exts. A and B, especially the portions marked in red pencil', 'questions testing the memory of the witness relating to the marked portions', 'questions as to the points noted by the witness as seditious' and so forth.

This complaint means that the District Magistrate disallowed certain questions upon the ground that the points to which they related and which the petitioner intended to make by means of them were irrelevant. The actual questions as to each point are not specified and without them we cannot decide whether any particular question relating to any of those points was or was not admissible. A party asking for redress at the hands of an appellate or revisional Court on the ground that the Court below has wrongly excluded a question which the party wished to put to a witness, must State the form and substance of the question proposed to be put to enable the appellate or revisional Court, as the case may be, to determine whether the particular question in each case was so framed as to make it admissible under the Indian Evidence Act. Every question said to have been disallowed could have been taken down by one of the pleaders who appeared for the petitioner before the Magistrate and it could have been, stated to us in an affidavit. As this is not done here, we must treat the objection raised, before us to be substantially this that the District Magistrate prevented the petitioner's pleader from asking any questions in cross-examination on certain material points on the ground of the irrelevancy of those points. From the depositions, however, we find certain answers given by the witnesses which could only have been given to questions relating to those very points more or less. It cannot be reasonably maintained, therefore that the points themselves were excluded as irrelevant.

2. The second class said to have been disallowed consists of two questions specifically stated in the written applications. One of them was clearly inadmissible, because it required the witnesses to point out the passages in the reports, A and B which, in their opinion, were seditious. That was a question for the Court to decide, not for the witness to answer. The other question was 'what portions of Exhibits A and B were full renderings and which portions were paraphrased?' Strictly speaking this question was admissible, but it is not such an important question as to affect materially the main question which was at issue and justify our interference with the order of the District Magistrate in revision. The main issue was whether the petitioner had used in his lectures certain language which, formed part of Exhibits A and B and which, if used by him plainly brought him within the law as to sedition contained in Section 198 of the Code of Criminal Procedure. The single question just mentioned did not directly bear upon that point; it merely touched the fringe of the case. Judging from the positions and the District Magistrate's endorsements on the written applications as to the questions alleged to have been is allowed by him, it appears to us that the cross-examination as more or less intended to worry the witnesses and weary the court rather than to help it to arrive at the truth by means of simple and straightforward defence supported by an attempt deal in cross-examination principally with the leading point it issue. For these reasons ve decline to interfere with the order if the District Magistrate and discharge the rule.


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