1. This is a reference by the learned Sessions Judge of Mainpuri. He has recommended that the conviction of two men under Sections 6 and 4, respectively, of the Child Marriage Restraint Act, should be quashed and a retrial ordered. The two accused persons were tried by the District Magistrate of Etawah summarily. One of them was fined Rs. 150 and the other Rs. 100. The chief question at issue was whether the girl in respect of whom the offences are said to have been committed was or was not under 14 years of age. Evidence was produced by the prosecution and then witnesses were examined by the accused. Among these witnesses was a doctor who gave it as his opinion that the girl was over 14 years of age. The complainant then made an application to a Magistrate suggesting that he himself should see the girl and get her medically examined by some other doctor. The Magistrate acceded to this request, and having seen the girl came to the conclusion that she could not possibly be over 14 years of age. He had her examined by the Civil Surgeon. It is necessary to note that he chose the Civil Surgeon of his own accord.
2. The opinion of the Civil Surgeon was that the girl was 11 years of age. Before the Civil Surgeon could be examined as a witness an application was made to the Magistrate by the complainant that the evidence of the Civil Surgeon should be recorded. The Magistrate examined the Civil Surgeon under the provisions of Section 540, Criminal P.C. He then finally came to the conclusion that the necessary facts which constituted the offences had been proved, and he passed the sentences which I have mentioned. The sentences are not appealable but the accused persons filed an application in revision in the Court of the Sessions Judge with the result that the Sessions Judge has made this reference. Whether the girl was or was not over 14 years of age was a pure question of fact. The Magistrate had jurisdiction to decide that fact, and he seems to have taken every care to get all possible evidence upon the record. There seems to be no reason why this Court should go into this question of fact. One of the legal points raised is that the Magistrate should not have examined the Civil Surgeon because his name had been suggested by the complainant. In the first place it appears that in the first instance the Civil Surgeon was not suggested by the complainant to the Magistrate, and in the second place if the Magistrate thinks that certain evidence is necessary for a proper decision of the case, he is bound to bring that evidence upon the record under the provisions of Section 540, Criminal P.C., whether the suggestion emanates from the complainant or not. He should not of course examine any witness under Section 540, Criminal P.C., merely because the complainant chooses to suggest the witness; but if he himself thinks that the evidence of the witness is essential he is not only allowed to examine the witness but is by law bound to do so. The other point is that the accused persons should have been specifically given an opportunity to produce further evidence to rebut the evidence of the Civil Surgeon when it was found that evidence was against their interest. I can find nothing in the Criminal Procedure Code which says that if a witness examined under Section 540 gives evidence which is against the accused the accused thereupon must be given a further opportunity, to produce more evidence to rebut his statement. There may be cases undoubtedly where in the interest of justice a Court would normally give the accused such an opportunity, but this does not seem to be one of them. The accused had already produced evidence including the evidence of a doctor, and it is not very clear what further evidence they could have produced. In any case this is an application in revision, and not an appeal. If the accused really felt that there was certain other evidence which ought to have been brought on the record in their interests after the Civil Surgeon had been examined, they could have made an application to the District Magistrate to give them an opportunity to produce that evidence. It does not appear that any such application was made or that there was any protest against the Court proceeding to judgment after the Civil Surgeon had been examined. In these circumstances,, I see no reason to interfere in this case in revision. I reject the reference.