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Hafiz Mohd. Rafiq Ahmad Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1936All319
AppellantHafiz Mohd. Rafiq Ahmad
RespondentEmperor
Excerpt:
- .....criminal p.c., in that he did not examine the accused after the witnesses for the prosecution were cross-examined. the facts as i understand them are that the witnesses were examined and then the accused was examined and then a charge was framed and then the witnesses for the prosecution at the instance of the accused were re-called and cross-examined. in the first place it seems to me to be at least arguable that the provisions of section 342, criminal p.c., do not require the examination of the accused; after the witnesses for the prosecution have been cross-examined at the instance of the accused. the section says that the accused shall be examined after the witnesses for the prosecution have been examined and the accused has been called upon to enter upon his defence. it seems to me.....
Judgment:
ORDER

Allsop, J.

1. These are two applications in revision. The applicant was sentenced to rigorous imprisonment for a period of six months on two counts, i.e., for receiving and retaining two stolen bicycles knowing or having reason to believe that they were stolen. It is argued in the first place that the learned Magistrate was not entitled to pass a sentence of rigorous imprisonment for a period of six months because it must be assumed that this was a summary trial upon the ground that the Magistrate made only a memorandum of the evidence of the witnesses and did not record their evidence in the language of the Court or have it so recorded. This argument is based upon a misconception. It overlooks the provisions of Section 355, Criminal P.C. There are certain offences which a Magistrate may try summarily under the provisions of Section 260, Criminal P.C. If he does so try them he is not required to make any memorandum of the evidence at all. If he does not try them under the provisions of Section 260, Criminal P.C., but tries them in the ordinary course he is required under Section 355, Criminal P.C., to make a memorandum of the evidence. He is not required to record the evidence in the! language of the Court or have it so recorded. The provisions of Section 356, Criminal! P.C., apply only to cases to which the provisions of Section 355 do not apply. The Magistrate did not try this case summarily and therefore he was entitled to pass a sentence of rigorous imprisonment for a period of more than three months.

2. The next argument is that the trial was vitiated because the Magistrate did not observe the provisions of Section 340(2), Criminal P.C., in that he did not examine the accused after the witnesses for the prosecution were cross-examined. The facts as I understand them are that the witnesses were examined and then the accused was examined and then a charge was framed and then the witnesses for the prosecution at the instance of the accused were re-called and cross-examined. In the first place it seems to me to be at least arguable that the provisions of Section 342, Criminal P.C., do not require the examination of the accused; after the witnesses for the prosecution have been cross-examined at the instance of the accused. The section says that the accused shall be examined after the witnesses for the prosecution have been examined and the accused has been called upon to enter upon his defence. It seems to me that it might reasonably be said that this section requires the accused to be examined at a stage when he knows all that the witnesses are going to say against him. When he cross-examines 'the witnesses after the charge he does so [presumably as a part of his defence and it is not to be supposed that he intends to (elicit further information which may be used against him. In the second place even if it is strictly necessary under Section 342, Criminal P.C., to re-examine the accused after the witnesses for the 'prosecution have been cross-examined at the instance of the accused after the charge has been framed, still in the pre-sent case any irregularity which may have taken place is cured by the fact that it is obvious that no injustice was caused to the applicant. It is not suggested that there was any other statement which he intended to make which would have affected the course of the trial.

3. The third point is that the accused was asked after the charge was framed on that very day whether he wished to cross-examine the witnesses for the prosecution. It is said that this question should not have been put to him till the next hearing. It appears that the witnesses for the prosecution were summoned for an adjourned hearing in order that they might be cross-examined and that they were cross-examined on that date. It is obvious that it made no difference to the accused whether the question was put to him on the date when the charge was framed or on the next date when the witnesses for the prosecution were present and when in fact they were cross-examined.

4. The fourth point urged before me is that the applicant had no knowledge that the bicycles which were in his possession were stolen property. This is a question of fact upon which the Magistrate and the Sessions Judge have both adjudicated. The Courts below have examined the evidence and from the circumstances they have inferred that the applicant must have had guilty knowledge. There is certainly no ground for interference in revision. The applications are rejected. The applicant shall surrender to his bail and serve out the sentences passed upon him.


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