1. This is a case in which two parties, Hindus and Muhammadans, were accused of rioting and convicted under Section 147 of the Indian Penal Code. In the trial of the Muhammadan party a number of witnesses were produced and examined on behalf of the prosecution. In the trial of the Hindus, which was subsequently held, the Magistrate, instead of examining the witnesses, had the copes of the examination-in-chief of the witnesses recorded in the former trial produced in the present trial with which I am concerned in the revision case now before me, and the petitioners, who were the accused, cross-examined the witnesses. I presume that the copies of the depositions were read out to the witnesses, because but for this no cross-examination could have taken place. Mr. Dillon on behalf of the petitioners concedes that the ground mentioned in the application for revision cannon be sustained. But he argues that, because of the irregularity as to the examination of the witnesses, the trial is ab initio void, since there was no evidence by way of examination-in-chief in the presence of the accused in this trial, and therefore the conviction should be quashed. At the same time he argues that a new trial would not be to the interest of his clients, because the sentences passed on them expire on the 4th proximo.
2. What I have to consider is, whether this is a fit case for interference in revision. Mr. Dillon relies on Section 138 of the Evidence Act, that witnesses shall be first examined-in-chief and then cross-examined. He further refers to Section 353 of the Criminal Procedure Code, which lays down that the evidence shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader. His contention, as based on these sections, referred to above, is that there was no evidence taken in presence of the accused as far as the examination-in-chief is concerned, and that there having been no examination-in-chief, there could legally be no cross-examination. He refers to Queen v. Bholanath Sen I. L. R., 3 Cal., 23, as also Empress v. Zauwar Husain, Weekly Notes, 1885, p, 28, in support of his contention. On the other hand, the learned Government Pleader, though fully conceding that the procedure adopted by the Magistrate was irregular, contends that this is an irregularity which is covered by Section 537 of the Criminal Procedure Code, and it cannot therefore have the effect of vitiating the trial. He further relies on Parmessur Singh v. Soroop Aubhikaree, 13 W. R., Cr., 40, and argues further, that, if it be necessary to go into the merits, Section 167 of the Evidence Act would materially help him, inasmuch as the matter elicited in cross-examination is sufficient to sustain the conviction. I have, after due consideration, come to the conclusion that the contention of the Government Pleader is adequate for declining to interfere in this case. When the witnesses were produced and their depositions in the former trial were read out and verified, no objection was taken to the procedure on behalf of the accused, but on the other hand the witnesses were cross-examined on those depositions on behalf of the accused. The points which have thus been elicited in cross-examination are sufficient to sustain the conviction, and the irregularity is cured by the provisions of Section 537 of the Criminal Procedure Code. Mr. Dillon has not shown that there has been any failure of justice in the case in consequence of the procedure adopted by the Magistrate, or that the accused have been substantially prejudiced thereby. I therefore refuse the application and direct that the record be returned.