1. This rule was issued upon the District Magistrate, Tipperah, to show cause why the conviction of and sentences passed on the petitioners should not be set aside upon certain grounds specified in the rule. The brief facts of the case were as follows : The petitioners were placed upon their trial before a Magistrate. After the examination of a certain number of prosecution witnesses, charges were framed against them on 1st November 1937 and 27th November 1937 was fixed for cross-examination of the prosecution witnesses. On 27th November, the petitioners refused to cross-examine these witnesses on the ground that they wanted time to engage a senior pleader. The petitioners' prayer for time was refused and the case proceeded. On a subsequent date the petitioners applied for the recall of the prosecution witnesses for the purpose of cross-examination. This prayer was also refused. Subsequently defence witnesses were examined and the accused were convicted. When the case came on appeal before the learned Sessions Judge, the latter recorded an order under Section 428, Criminal P. C, asking the Magistrate to cross-examine the prosecution witnesses, to certify that evidence and to resubmit it to him. On receipt of the further evidence the learned Judge heard and dismissed the appeal.
2. The short ground on which this rule was issued was that the Court of Appeal below had no jurisdiction to direct the Magistrate to record the evidence and then to decide the appeal. Now the plain wording of Section 428, Criminal P.C., empowers the Appellate Court, if it thinks additional evidence to be necessary, to direct the Magistrate to take such evidence, and on its receipt to dispose of the appeal. In view of the plain language of this Section, it seems difficult to hold that there was any want of jurisdiction in the Appellate Court, or any illegality in this procedure. Mr. Dutt for the petitioner suggested that where the Appellate Court was of opinion that the failure to record sufficient evidence in the lower Court prejudiced the accused, Section 428 could have no application. We are unable to see the force of this suggestion. In the first place there was no irregularity in the procedure adopted by the learned Magistrate. In the second place if the omission to cross-examine witnesses left a gap in the evidence, the simple and legal method of dealing with the position was certainly that adopted by the learned Judge when he directed that they should be cross-examined and their evidence submitted to him. We are therefore of opinion that there is no substance in the present rule, and that it must be discharged. The petitioners, if on bail, must surrender to their bail and serve out the remainder of their sentences.
3. I agree. One of the points taken before the learned Judge at the hearing of the appeal was that the defence had not cross-examined certain of the prosecution witnesses. The learned Judge gave effect to this, and directed under the provisions of Section 428, Criminal P.C., that the Magistrate should have the witnesses cross-examined and certify the evidence to his Court. This was accordingly done. It is now contended on behalf of the petitioners that the learned Judge's order was made without jurisdiction, because Section 428 has no application to the case of a witness who has not been cross-examined at the trial. If we were to give effect to this contention it would lead to most startling results. We should have to hold in the first place that cross-examination is not evidence. In the second place grave injustice would sometimes be caused. It is not uncommon in this province to find a conspiracy case, the trial of which lasts for months. It might be that in such a case one out of hundreds of witnesses was not cross-examined. Then if the accused in the Appellate Court asked the Judge to deal with the matter under Section 428, the only reply would be that such an order was without jurisdiction, and there must be a new trial causing endless harassment to the accused. Nothing would induce me to give such an interpretation to the Section unless the wording of it compels me to do so. As my learned brother has pointed out the wording is perfectly plain. If the Appellate Court thinks that there is nothing in the point, no order will be passed. But, if the Appellate Court thinks that this evidence is necessary, then on the plain wording of the Section it has power to deal with the matter under these provisions.
4. In support of his contention Mr. Dutt has relied on certain observations made by the learned Judges who decided the case in Emperor v. Laxman Ramshet (1929) 16 AIR Bom 309. Now those remarks do not go as far as Mr. Dutt has asked us to go. They only apply to a case in which there is some illegality committed by the trying Magistrate. They would have no application to a case such as the present in which no illegality was committed. In my opinion that by itself makes it difficult to assent to the proposition laid down in that decision. I do not see how the Appellate Court could have jurisdiction to record evidence in some cases and not in others. The jurisdiction must apply to all of them or to none of them. With great respect to the learned Judges who decided that case, I am of opinion that they did not clearly distinguish two things which are really quite distinguishable. It may be that a Magistrate may commit some illegality, such as a mis-joinder which renders his proceedings entirely illegal. Of course in such a case, whatever evidence might have been recorded in the Appellate Court, a retrial will be ordered; but that is quite a different thing from saying that the Appellate Court has no jurisdiction to have the evidence taken under Section 428. An application to that effect is usually made as a preliminary before the appeal is heard on the merits. Of course if it was discovered later on that a new trial had to be ordered on account of some illegality, the taking of the additional evidence would have been a mere waste of time. But that is quite a different thing from saying that the Court in doing so was acting without jurisdiction. For these reasons, I agree with my learned brother that the Appellate Court has jurisdiction to proceed under Section 428 in cases where the prosecution witnesses have not been cross-examined at the trial and the appellant wishes for this additional evidence to be brought before the Court. The result, accordingly, in my opinion, is that this rule must be discharged.