1. This is an application in revision by the complainant Mangru Feku Momin asking this Court to set aside the order of compensation passed against Mm by the First Glass Magistrate of Malegaon for the payment of Rs. 10 to each of the eight accused. His complaint of assault was dismissed and this order for compensationordered. The learned Sessions Judge in appeal declined to set aside the order.
2. The main ground in support of the application is that the Magistrate, after recording the evidence of the complainant, went to the alleged scene of offence, questioned a certain number of people there suo mote, made no note or record and then returned and examined one out of the crowd, Janmahomed, as a Court witness. He then proceeded to discharge the accused and made the order of compensation in question.
3. In view of the unusual procedure adopted, a report was called for from the Magistrate and it is now before us. In effect all these facts are not denied by the Magistrate and he says:-
The answers, I gob to my questions from the crowd, were statements made by witnesses and they were considered asoral evidence. This was evidence furnished by persons upon local enquiry (Evidence Act) and not that furnished by actual view of the place by local inspection under Section 539-8, Criminal Procedure Code. I humbly thought that this local investigation as distinguished from local inspection was within the purview of the Evidence Act.
4. The learned Magistrate has not referred us to the precise section of the Indian Evidence Act within the purview of which he thought the answers from the crowd fell. Mr. Rele, the pleader for the accused, has also sought to bring this procedure under the Indian Evidence Act. But his success is not proportionate to the elaborate argument in its favour, which rests solely on the definition of evidence, It is clear that such a judicial practice cannot be permitted but must be sternly discouraged, of questioning persons without recording their evidence and without allowing the other side an opportunity for cross-examination. And the defect is not made up by calling one out of the many witnesses, whose answers evidently influenced the Magistrate, and recording his evidence alone.
5. We trust it will be clear to the learned Magistrate that in judicial proceedings the provisions of the law must be strictly observed in regard to evidence or to local inspection under the provisions of Section 519 B of the Criminal Procedure Code. Even in local inspections the absence of a memorandum has been held in a recent case to be an illegality vitiating the conviction and not a mere irregularity : Hriday Govinda Sur v. Emperor I.L.R. (1924) 52 Cal. 148.
6. We are not asked in this case to set aside the order of discharge. It suffices to say that the proceedings, in my opinion, being vitiated, the order of compensation passed therein must be set aside, and the amount, if paid, refunded to the petitioner.
7. In my judgment the First Class Magistrate has violated one of the elementary principles of justice, viz., that an accused can only be convicted on the evidence of witnesses who have been properly sworn before the Court and whose evidence the accused has had an opportunity of cross-examining. The suggestion put forward in the Magistrate's report and which has been argued in detail by the pleader for the accused is, to my mind, a hopeless one, for ,no judicial officer has in any trial, civil or criminal, the right to question members of a crowd, who are not sworn and to treat their answers as if they were evidence in the case. The defect was not in any way cured by calling subsequently in the trial Courtone member of the crowd, viz,, Janmahomed One cannot say what influence these utterly illegal inquiries had upon the Magistrate's mind. For that reason, therefore, if for no other, I concur in setting aside the order for compensation, which the Magistrate passed against the complainant in the present case.