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Chhajju and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1927All217
AppellantChhajju and anr.
RespondentEmperor
Cases ReferredSubramania Ayyar v. King
Excerpt:
.....110 to be undertaken against them. the mere fact that these proceedings followed so quickly on their release from the dacoity proceedings is not necessarily proof that the evidence for the prosecution was not given in good faith......for the prosecution were examined on may the 10th and cross-examined the same day, and the accused (applicants) also made their statements on the same day. on that day the accused were not represented by counsel. there was a subsequent hearing on may the 19th on which day the accused were represented by counsel. all that happened then was that the witnesses for the defence were examined. it is maintained that under section 256, criminal procedure code, the magistrate was required to record his reasons in writing if he permitted the accused to cross-examine the witnesses for the prosecution forthwith; and that his failure to do so amounts to an illegality and not a mere irregularity. the decision of their lordships of the privy council in subramania ayyar v. king-emperor [1902] 25.....
Judgment:

Kendall, J.

1. This is an application in revision against the appellate order of the Sessions Judge of Moradabad, confirming the order passed against the applicants by the Magistrate under Section 110 of the Criminal Procedure Code. The main argument which has been addressed to me in support of the application, relates to the omission of the trying Magistrate to inform the applicants that they could re-summon the witnesses for the prosecution for cross-examination at the next hearing. The facts are that the witnesses for the prosecution were examined on May the 10th and cross-examined the same day, and the accused (applicants) also made their statements on the same day. On that day the accused were not represented by counsel. There was a subsequent hearing on May the 19th on which day the accused were represented by counsel. All that happened then was that the witnesses for the defence were examined. It is maintained that under Section 256, Criminal Procedure Code, the Magistrate was required to record his reasons in writing if he permitted the accused to cross-examine the witnesses for the prosecution forthwith; and that his failure to do so amounts to an illegality and not a mere irregularity. The decision of their Lordships of the Privy Council in Subramania Ayyar v. King-Emperor [1902] 25 Mad. 61 was referred to in this connexion.

2. It is perfectly true that their Lordships have decided that disobedience to an express provision as to the mode of trial is not a mere irregularity but an illegality, which will vitiate the proceedings. In the present case there has been disobedience to an express provision of law-at any rate it has not been pointed out to me that the Magistrate recorded reasons and I cannot find that he did. The provisions in Section 256, Criminal Procedure Code, however, are not provisions relating to the mode of trial, and it would be wrong in my opinion to hold that failure to follow those provisions strictly amounts to more than an irregularity in procedure. It appears to be clear enough that the accused did not wish to resummon any witnesses, for, when they were represented by counsel on May the 19th the witnesses were not re-summoned, as I have no doubt they would have been had any application been made on behalf of the accused There has been no failure of justice on account of the irregularity.

3. Apart from this point, there is little to be said. The Magistrate heard the evidence on both sides, and he called on the applicants to execute bonds after being satisfied by evidence of general reputation that such a course was necessary. Both he and the learned Sessions Judge believed the witnesses for the prosecution. It has been pointed out that the police have admitted that they only opened history sheets for these applicants quite recently, and that the applicants after being suspected in a dacoity case had been released a few days before the present proceedings were instituted. It appears, therefore, that the police, having failed to obtain sufficient evidence against the accused in a definite case, fell back on a second line of attack and caused proceedings under Section 110 to be undertaken against them. It is possible, however, that the accused were suspected in the dacoity case on account of their general reputation, and it is on account of their general reputation that they have been required to furnish bonds. The mere fact that these proceedings followed so quickly on their release from the dacoity proceedings is not necessarily proof that the evidence for the prosecution was not given in good faith.

4. For these reasons the application is dismissed.


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