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Nirmal Kumar Ghosh Vs. the King - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1949CriLJ468
AppellantNirmal Kumar Ghosh
RespondentThe King
Excerpt:
- .....at the close of 4he prosecution case be examined in accordance with the provisions of section 842, criminal p. c. in the light of the observations made above. thereafter the defence will be allowed to examine defence witnesses if it thinks fit and the case shall proceed according to law. the appeal is allowed. the fine shall be refunded.
Judgment:

Sen, J.

1. The appellant has been convicted of having committed an offence punishable under. Section 7,(1) of Act xxiv [24] of 1946, that is to say of having sold paper above the price fixed by the Government of India and has been sentenced to pay a fine of us. 1000 in default to undergo rigorous imprisonment for six months.

2. The case against the appellant briefly is this: The appellant is a dealer in paper. On 4th March 1948, Sub Inapector Sarkar of the Enforcement Branob sent a teat purchaser Bajrangi. Jal with marked notes to purchase paper from the acoused. The accused is alleged to have charged Es. 83 for three reams of paper although the controlled rate was ks. 5 5-0 per ream. as soon as the purchase was made the Sub-Inspector came into the shop, seized the paper, made a search and then sent up the accused for trial. The defence of the accused is that ha did not sell any paper at all and that he took an advance of En. S3 from the purchaser for supplying a special kind of paper namely oiled paper. I should mention here that the price of an. 5-3-0 per ream is fixed for foolscap paper. There is apparently no fixed price for oiled paper. The learned Magistrate has disbelieved the defence and convicted the accused.

3. Having regard to the decision at which I have arrived it will not be necessary for me to deal with the evidence. For certain reasons the order of conviction and sentence must be set aside and the case muat be sent back for retrial. The first reason is that the accused has not been examined in accordance with the provisions of Section 342, Criminal P. C. From the resord this is all that appears: 'Statement of accused under Section 842, Criminal P, C. The acoused says that he will file a written statement bat will adduce defence,' This is how the learned Magistrate has sought t> comply with the provisions of Section 342, Criminal I. C. Now it has been laid down in a series of Ciises and indeed it follows from the words of the auction itself that it is the duty of the Court under Section 342, Criminal P. C., to question the accused for the purpose of enabling him to explain the circumstances appearing in evidence against him. There is no record of what questions were pat by the Court to the accused. Merely asking the accused if ho has anything to asy is certainly not a compliance with the provisions of Section 845, Criminal P. C. The record must show that the Court put questions to the accused as would enable the accused to explain the circumstances which appear against him. It is not necessary for the Court to put every detail of the evidence before the accused, but the broad facts of the case against the accused should be put to him by the Court, and the Court should ask the ac-cusad whether he would like to explain the circumstances which appear against him. There was thus not a proper examination of the accused under Section 842, Criminal P. C.

4. Secondly, I would point out that a written statement of the accused is no substitute for an examination under 8. 842, Criminal P. C. In this connection I would refer to the observations of Eankin J. as he then was, in the case of Pro-moiha Nath y. Emperor, 50 cal. 518 : (A. I, B. (10) 1923 cal. 470: 24 Cr. L. J, 248) The observa-tions appear at page 522. His Lordship said:

The intention of the statute is that 'at a certain stage in the case' the Court itaelf shall put aside all Counsel, all pleaders, all witnesses, all representatives, and shall call upon each individual accused with the' autherityof the Court's own voice to take advantage of the opportunity which than arises to state in his own way anything which he may be desirous of stating,

At page 523 his Lordship says:

The fact that the accused were asked to put in written statements, in my opinion, is of no great moment for this purpose. There is all the difference in the world between a written statement, presumably prepared, almost certainly revised, by the lawyers appearing for the defence, and a statement made by the acoused himself so that the Magistrate can observe his demeanour and his manner while he makes it, and come to his conclusions as to the value of his evidence.

It is unnecessary to cite further oases, but the wording of the section makes it quite clear that a written statement cannot take the place of statements requited to be made under the provisions Section 842, Criminal P. C.

5. There is a third point which touches upon this matter. After the conclusion of the case for the prosecution, and after the arguments had been heard and after the so-called examination of the accused under Section 342, Criminal P. C.,:the Court recalled witneBS no. l, the Sub-Inspector as a court witness and put certain questions to him. Thereafter the accused was not examined in accordance with the provisions of Section 842, Criminal P. C. In my opinion there should have been a fresh examination of the accused in accordance with the provisions of Section 312 of the said Code to enable him to explain anything which may have appeared against him from the evidence given by this Court witness. The accused was not given any opportunity of doing this. The object of Section 342 of the Code is perfectly clear. The accused in this country cannot give evidence and the only way in which he can put his case personally to the Court is when he is given an opportunity of explaining the circumstance? appearing againt him in accordance with the provisions of Section 342 of the Code. The object of this section is to enable the accused to explain all the circumstances appearing in the evidence against him. If a witness is examined, be it by the Court or by any one else, and if the statement of that witness is evidence against the accused, the accused must be given an opportunity to explain the circumstances appearing in the evidence in accordance with the provisions of Section 842 of the said Code. The Court has therefore committed an error in not examining the accused again under Section 342, Criminal P. C, after the examination of the court witness. I would add here that the evidence of the court witness is not merely formal evidence but it is vital evidence.

6. In these circumstances I must set aside the order of conviction and sentence and direct the case to be retried. Ordinarily the case should be retried from the stage at which the examina-tion of the acoused under Section 342 of the said Code takes place. In the present case, however, I pro. pose to allow the retrial from an earlier stage and for this reason The accused wished to recall the prosecution witness No. 2, Girindra Kumar Bhattacharjee, He is an Inspeotor of the Paper Control Department and he is an expert in these matters. Although he was summoned, he did not appear and the Court did not enforce his atten-dance. The accused complains that he has been prejudiced by the non-appearance of this witness and he prays that this witness may be recalled and that he may be allowed to cross-examine him. I think this is a prayer that is reasonable and that it should be allowed.

7. I therefore direct that the case be re heard, that this witness be recalled and the accused be allowed to cross-examine him further. Thereafter the prosecution will be entitled to adduce such further evidence as they think fit. The accused shall at the close of 4he prosecution case be examined in accordance with the provisions of Section 842, Criminal P. C. in the light of the observations made above. Thereafter the defence will be allowed to examine defence witnesses if it thinks fit and the case shall proceed according to law. The appeal is allowed. The fine shall be refunded.


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