1. Musammat Ahmadi Begam was suspected of having committed the offence of murder. The case was under inquiry with a view to commitment, if necessary, to the Court of Sessions. The evidence produced in support of the prosecution had apparently been put forward up to the 4th of December. On the date a petition was put in by Musammat Ahmadi Begam asking the Court to take the evidence of her witnesses under Section 208* of the Criminal Procedure Code before taking her statement. Upon that petition the first order passed is dated the 4th of December, and was as follows: 'It is too late to pass an order now, as it is about 5 p.m.' With this order apparently the proceedings of the 4th of December came to a close. I understand that the accused had witnesses present in Court on that day who could have been then and there produced and examined. In that case I do not understand what difficulty the learned Magistrate could have had in passing the only proper order under the circumstances, namely,--'those witnesses shall be heard either to-day or as soon as the Court re-opens to-morrow.' This would have been in accord with what appear to me to be the very clear words of the Code, and would have obviated all the difficulties which arose from the way in which the Magistrate subsequently dealt with the case.
2. On the 5th December, the accused put in another petition to the effect that, in the event of the Court deciding that her case must be committed to the Sessions, she wished to reserve her defence, and that she would in that Court make her replies to any questions that might be put to her for the purpose of enabling her to explain any circumstance appearing in the evidence against her. It was optional and entirely within the power of the accused to put in an application of this kind. The fact that she did do so would not absolve the Magistrate from his duty in carrying out the provisions of the law and from examining her, whether she answered or refused to answer. I mention this because of the order subsequently made by the learned Magistrate, from which it would appear that he thought that as soon as the accused reserved her defence he was not absolved from the duty of asking her for her statement, but he was absolved from the equally imperative duty of taking all such evidence as was produced on her behalf.
3. On the petition of the 5th of December the Magistrate writes that he must ask the accused herself what statement she has to make, in spite of what he terms an attempt on the part of the barrister for the accused to waive its right to examine the accused vested in it by Section 342* of the Code of Criminal Procedure. But he declined to hear the evidence tendered on her behalf, and then and there committed the accused for trial before the Court of Sessions. The Magistrate was not empowered to frame a charge or make out an order for commitment until and after he had taken all such evidence as the accused produced before him for hearing. I accordingly set aside the order of commitment and return the case to the Deputy Magistrate of Gorakhpur with directions to give notice to the prosecution and to the accused of a convenient day, and on that day to hear all and such evidence as may be produced on behalf of the accused and after that to complete the inquiry according to law. Let the record be returned.
*[Section 208.--The Magistrate shall, when the accused appears or is brought before him
proceed to hear the complainant (if any), and take in manner.
Taking of evidence pro- hereinafter provided all such evidence as may be produced in
duced. support of the prosecution or in behalf of the accused, or as
may be called for by the Magistrate.If the complainant or officer conducting the prosecution, or the accused, applies to the
Magistrate to issue process to compel the attendance of any
Process for production of witness or the production of any document or other thing, the
further evidence. Magistrate shall issue such process unless, for reasons to be
recorded, he deems it unnecessary to do so.
Nothing in this section shall be deemed to require a Presidency Magistrate to record his reasons.]
*[Section 342:--For the purpose of enabling the accused to explain any circumstances
appearing in the evidence against him, the Court may, at any
Power to examine the stage of any inquiry or trial, without previously warning the
accused. accused, put such questions to him as the Court considers
necessary, and shall, for the purpose aforesaid, question him
generally on the case after the witnesses for the prosecution have been examined, and before
be is called on for his defence.
The accused shall not render himself liable to punishment by refusing to answer such
questions, or by giving false answers to them; but the Court and the jury (if any) may draw
such inference from such refusal or answers as it thinks just.
The answers given by the accused may be taken into consideration in such inquiry or trial,
and put in evidence for or against him in any other inquiry into, or trial for, any other
offence which such answers may tend to show he has committed.
No oath shall be administered to the accused.]