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Jiwan Singh and anr. Vs. Sheodan Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All764
AppellantJiwan Singh and anr.
RespondentSheodan Singh and anr.
Excerpt:
.....and no attempt of any sort has been made by the accused persons to show that in fact a failure of justice has been occasioned, in other words the accused has not attempted to show that this departure from procedure, which, is an irregularity, was accompanied by a failure of justice so as to make it necessity to hold that the trial was vitiated thereby. it might, of course, in some cases, be possible to show that there had been such a failure of justice. the fact that such an omission as the present to comply with the terms of section 360 only amounts to an irregularity which, if a failure of justice has not been caused, will not necessitate the setting aside of the proceedings, should not lead magistrates into being careless in regard to the procedure. it gives the accused,..........irregularity within the meaning of section 537 and that the omission vitiated the whole trial. the learned judge had not before him the view of the privy-council expressed in abdul rahman v. emperor . the decision in that case reached the country subsequent to the judgment of the learned sessions judge. it has not yet been reported in the authorized law reports. in our view, even before their lordships' decision, there could have been no real doubt that the omission complained of in this case was nothing more than an irregularity. it is, however, unnecessary, in view of their lordships' decision, to discuss the matter further. in the particular case before us it is an accused person who complains of this departure from the procedure required by section 360.2. it is possible that there is.....
Judgment:

1. This is an application in revision raising a point of some importance bearing on the practice of the lower Courts. Certain persons appealed from their conviction by a Magistrate and one of the grounds urged was that the Magistrate had not read over or caused to be read over the evidence of the witnesses on the completion of each deposition, but had considered it sufficient that the Reader should repeat aloud each sentence as he wrote it. The learned Sessions Judge has held this to be more than an irregularity within the meaning of Section 537 and that the omission vitiated the whole trial. The learned Judge had not before him the view of the Privy-Council expressed in Abdul Rahman v. Emperor . The decision in that case reached the country subsequent to the judgment of the learned Sessions Judge. It has not yet been reported in the authorized Law Reports. In our view, even before their Lordships' decision, there could have been no real doubt that the omission complained of in this case was nothing more than an irregularity. It is, however, unnecessary, in view of their Lordships' decision, to discuss the matter further. In the particular case before us it is an accused person who complains of this departure from the procedure required by Section 360.

2. It is possible that there is some distinction to be drawn where it is a witness who complains of a similar omission where he has been charged with having committed perjury and his previous deposition is put in as evidence; but prima facie it would certainly appear that even in such a case there is nothing more than an irregularity, and the omission to comply with the terms of Section 360 would only affect, and might affect heavily, the weight to be attached to the record of the witness' deposition as evidence against him on the charge of perjury. In the present case it is clear that there was initially nothing more than an irregularity and no attempt of any sort has been made by the accused persons to show that in fact a failure of justice has been occasioned, in other words the accused has not attempted to show that this departure from procedure, which, is an irregularity, was accompanied by a failure of justice so as to make it necessity to hold that the trial was vitiated thereby. It might, of course, in some cases, be possible to show that there had been such a failure of justice.

3. Before passing our final order in this case we draw the attention of Magistrates to the necessity of following procedure strictly. The fact that such an omission as the present to comply with the terms of Section 360 only amounts to an irregularity which, if a failure of justice has not been caused, will not necessitate the setting aside of the proceedings, should not lead Magistrates into being careless in regard to the procedure. Such carelessness, though it may not lead to the setting aside of the whole proceedings, will always give an opening for much waste of public time and money. It gives the accused, if convicted, an opportunity of raising the objection in the appellate Court, and even if the appellate Court overrules the objection, time will have been wasted while the question is argued as to whether there has or has not been a failure of justice. It is, therefore, desirable in this, as in all other cases, that the prescribed procedure should be carefully followed.

4. Allowing this application in revision we set aside the order of the learned Sessions Judge, and restoring the order of the Magistrate, direct the learned Sessions Judge to re-admit the appeal and to hear it in accordance with law.


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