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Jhabboo and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All59; 55Ind.Cas.676
AppellantJhabboo and anr.
RespondentEmperor
Excerpt:
criminal procedure code (act v of 1898), section 257 - warrant case--accused, right of, to summon defence witness. - - he says that the magistrate had given the accused every facility for securing the attendance of this witness and that the accused was not prejudiced by the failure of this witness to attend. i think this ought now to be done, but that in the interest of justice, and for the convenience of the parties, this hearing might well take place in allahabad rather than in benares......dismisses the appeals of jhabboo and sanwalle, who are the two applicants in the matter now before me. the appeals of these two appellants will be restored to the pending file of and will then be transfered to the court of the sessions judge of allahabad for disposal. the learned sessions judge will issue process for the examination of the witness saiyid hamid husain on some convenieut date, by which the attendance of the witness can be secured and of which the appellants should have due notice. he will then dispose of the appeals according to law after hearing what evidence this witness has to give.
Judgment:

Piggott, J.

1. The one and only question raised by this application is whether the applicant Jhabboo was or was not allowed the privilege, which in a warrant case is secured to every accused person by Section 257, Clause 1 of the Code of Criminal Procedure, of obtaining the process of the Court for the attendance of a defence witness of the name of Saiyid Hamid Husain. As a matter of fact the Magistrate who tried the case issued process on two occasions for the attendance of this witness. He then refused to issue further process or to adjourn the hearing of the case. He has recorded an order which is apparently intended to express his opinion that the accused in repeating his application for the issue of process for the attendance of the said witness was doing so merely for the purpose of vexation or delay. The matter was represented to the learned Sessions Judge when the case came before him in appeal; he says that the Magistrate had given the accused every facility for securing the attendance of this witness and that the accused was not prejudiced by the failure of this witness to attend. The plain fact of the matter is that the witness in question is an employee of the Canal Department, whose attendance could only be procured by the issue of process through the head of his office, or such other superior officer as had the power of granting the witness leave to attend, the Court at Benares for the purpose of giving evidence. The accused himself was to some extent to blame in not bringing, this matter more dearly to the notice of the Court, but in his original application for the issue of process he described the witness as an employee of the Canal Department in a certain subdivision, and this alone should have put the Court on its guard to see that process was issued through the proper channel. The first two processes issued by the Court proved infructuous simply on account of this mistake, for which I hold that the Court was itself most to blame. On the third occasion process was ordered to issue through the proper channel. The order was passed on the 10th November and the date fixed was the 24th November. The summons actually reached the witness on the morning of that date and he was naturally unable to attend. The blame for this cannot in any way attach itself to the accused. Either the Court committed an error of judgment in fixing so near a date as the 24th November for the attendance of the witness, or there was unnecessary delay in the issue of the process from the office of the Court. If it be true, as stated in the affidavit before me, that the summons was not actually issued from the Magistrate's office until the 14th of November, then some one in that office was entirely to blame. The accused was entitled under the law to the assistance of the Court in the matter of securing the attendance of this witness and I can find no ground for holding that his final application made on November the 24th was made for the purpose of vexation or delay, or for defeating the ends of justice. Nor do I see how the learned Sessions Judge can have arrived at the conclusion that the accused Jhabboo was not prejudiced by the non production of this witness, when he does not know what evidence the witness may be prepared to give. The Magistrate seems to have acted in the matter under pressure, by reason of the fact that his transfer was impending: but the learned Sessions Judge could easily have summoned the witness himself and heard him. I think this ought now to be done, but that in the interest of justice, and for the convenience of the parties, this hearing might well take place in Allahabad rather than in Benares. My order is that I set aside the order of the Sessions Judge, of Benares in so far as this order dismisses the appeals of Jhabboo and Sanwalle, who are the two applicants in the matter now before me. The appeals of these two appellants will be restored to the pending file of and will then be transfered to the Court of the Sessions Judge of Allahabad for disposal. The learned Sessions Judge will issue process for the examination of the witness Saiyid Hamid Husain on some convenieut date, by which the attendance of the witness can be secured and of which the appellants should have due notice. He will then dispose of the appeals according to law after hearing what evidence this witness has to give.


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