1. These three applications have been heard together, as the offences, with which the accused persons were charged, were detected by the police at the same time and the evidence in each case is the same.
2. The report of the learned Magistrate, which was called for by this Court, shows that he recorded the evidence only in Criminal Case No. 110 of 1955, from which Revision Application No. 1377 of 1955 arises. The evidence recorded in this case was treated as evidence in the other two cases. This procedure is not permissible in Criminal trials. The provisions of the Code of Criminal procedure contemplate a separate trial in each case. In fact a separate trial is the normal procedure, see Section 233, Criminal P. C.
The accused in the three cases were also different. The learned Magistrate was therefore wrong in using the evidence recorded in Criminal Case No. 110 of 1955 in the other two cases. It appears from the learned Magistrate's report that the defence lawyer had agreed to this course. The consent of an accused person will not however make legal what is otherwise illegal.
As no evidence has been recorded in the other two Criminal Cases Nos. 105 and 106 of 1955, from which the other two Criminal Revision Applications Nos. 1375 and 1376 arise, we must hold that there was no proper trial of the accused in these cases. Consequently the convictions of the accused in these two cases and the sentences passed upon them must be set aside. We are informed that these two accused persons have already undergone imprisonment for a period of about one month and 5 days.
In view of this fact, we do not think that a retrial should be ordered. Accordingly, these accused persons will be acquitted of the offences with which they were charged. Pines, if paid should be refunded. Their bail-bonds are cancelled.
3. So far as the third Revision Application No. 1377 of 1955 is concerned, the only point which has been urged by Mr. Paranjpe on behalf of the applicant accused is that the learned Magistrate has contravened the provisions of Section 264, Criminal P. C. in not embodying in the Judgment the substance of the evidence of the defence witness Gopal Barhate.
Sub-section (1) of Section 264, Criminal P. C. as it stood before its recent amendment, provided that in every case tried summarily in which an appeal lies, the Magistrate shall record a judgment embodying the substance of the evidence. Sub-section (2) of this section stated that such judgment shall be the only record in cases coming within this section.
In the judgment recorded by the learned Magistrate, there is no reference to the evidence of Gopal Barhate. Mr. Paranjape has, therefore, urged that as the substance of his evidence, has not been embodied in the Judgment, the trial of the accused was illegal. He has relied on the decision of this Court in Emperor v. Nurudin AIR 1928 Bom 433 (A) in which it was held that
'the omission to comply with the provisions of Section 264, Criminal P. C. by not embodying in the Judgment the substance of the evidence is an illegality which vitiates the trial.'
From the judgment in that case, it appears that the trial Court had not only not embodied in the judgment the substance of the evidence, but had also not kept any notes of evidence. The appellate Court did not, therefore, know what the nature of the evidence against the accused was. It was, therefore, held that prejudice had been caused to the accused, because it prevented the proper disposal of the appeal that he was entitled to make. Consequently the trial in that case was held to be illegal and retrial was ordered.
The facts of the present case are, however, different. The learned Magistrate has recorded the evidence of Gopal Barhate in extenso and has also made it a part of the record. It is given exhibit No. 8 in the case. This evidence was also certified by the learned Magistrate to the Sessions Court. The Sessions Court was therefore in a position to know what the evidence was, at the time when it heard the appeal of the accused. No prejudice has, therefore, been caused to the accused by the procedure followed by the learned Magistrate in this case.
It would undoubtedly have been better if the learned Magistrate had compiled with the provisions of Section 264 by embodying in the judgment the substance of the evidence of this witness. But as his failure to do so has not caused any prejudice to the accused, we think that it would only amount to an irregularity, which is curable under the provisions of Section 537. Criminal P. C. Accordingly we are of the opinion that the trial of the accused cannot be held to be illegal, merely because the substance of the evidence of the defence witness Gopal Barhate was not mentioned in the judgment.
4. This application, therefore, fails and therule will consequently be discharged. The accusedshould surrender to bail.
5. Application dismissed.