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Babarali Sardar and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Subject Criminal
Decided On
Reported inAIR1929Cal182
AppellantBabarali Sardar and ors.
Cases ReferredMadari Sikdar v. Emperor A.I.R.
- .....which the copies could be made. if they did not get their copies in time their duty was to ask the learned judge in the circumstances to adjourn the cross-examination till the next day or, at all events not to formally conclude the cross-examination in case the statements when furnished might lead the learned pleader for the defence to cross-examine further. what in fact was done smacks too much to my mind of an attempt to make a grievance. what was done was that the pleader for the defence said that it was very inconvenient for him to file folios at that stage and it was no use to get copies at a subsequent time. so he did not file any folios and did not do the necessary to get the copies. that seems to me to put this grievance out of court altogether. i quite agree that that if in the.....

Rankin, C.J.

1. In this there are 10 appellants who have been tried before the learned Addl. Sessions Judge of Faridpur and a jury who heard 27 witnesses for the prosecution and a large number of witnesses for the defence. The jury have unanimously found the 10 appellants guilty of the charges of which they stand convicted. The nature of the case is that the deceased one Nawabali Mathar was a member of certain society (Samaj) in the village and that for various reasons he became unpopular with some of his neighbours owing to social friction showing itself in various ways, extraordinary petty-ways to all appearance, but really important from the point of view of the accused and the deceased. The character of the crime alleged, shortly speaking, was this that at 6 o' clock in the morning of Sunday 5th February 1928, when the deceased and certain ploughmen were tilling the field the accused bent upon revenging their grudge came running up-armed with lathis and certain small spears to make a determined attempt to cause hurt to the deceased. They were doing this in concert and had a common object in view. That, in point of fact, as so often happens when a number of people band together for such a purpose, one of them Hashu Bepari, accused 5, killed the deceased and two others inflicted grievous hurt upon the deceased, namely accused 9 and 10. Accordingly accused 5 was put on his trial and was convicted under Section 304 read with Section 148. The remaining of the first 8 accused were convicted under Section 147 of rioting and under Section 304 read with Section 149. As regards the second charge of which these persons have been convicted the case under Section 149 is of a very ordinary character. The charge against them is not that all of them set out to commit murder or homicide at all but that they set out with others to cause-hurt in circumstances which they well knew rendered it probable that some one or other of their party would go further and would deal a blow to the deceased which would result in his death.

2. It is a matter of most common experience based on elementary reasons that when a number of people attempt to carry out an object of that kind one or other goes further than he originally intended. I regard the charge against these persons as exactly of the type intended to be covered by the alternative clause of Section 149. As regards the accused 9 and 10 they have been convicted not only under Section 148 and under Section 304 read with Section 149 but under Section 324 also. The objection that has been taken on the part of the appellants to the proceedings in the lower Court has reference to the question whether they were given their rights under Section 162, Criminal P.C. We have not heard the Deputy Legal Remembrancer on this point and I will take the statement made in the appellants' own affidavit. This was a case which was tried after commitment and after an enquiry held before the Committing Magistrate. I shall assume, indeed I see no reason to refuse to assume, that had these appellants when before the Committing Magistrate asked for a copy of the statement made by any one of the witnesses then called for the prosecution they would have been entitled at that stage to a copy of the statements on the terms of the section. No such application was made. The Committing Magistrate finished his enquiry and committed the case and it left his Court altogether. Then it was that an application was made to him and it is conceded that he had no other course but to refuse it. An application was made to the learned Sessions Judge of Faridpur before the case came on for trial. At that time it was by no means certain which judicial officer would try this case. The learned Sessions Judge thought it was a case for the Judge at the trial and left the matter with him. Nothing happened in the meantime but at the trial a petition for copies was filed and after making the order for granting copies the Judge found that the Government Pleader was contending that the proper time to make the order was before the cross-examination of each witness had begun. That was quite true as laid down in the case in Madari Sikdar v. Emperor A.I.R. 1927 Cal. 314. A case to the contrary was cited from Patna which held that copies should be asked for when a witness entered the witness-box and the learned Sessions Judge very properly thought himself bound by the rulings of his own High Court. But in truth and in fact the position was this that copies were ordered to be granted at the commencement of the cross-examination. The order was then made. The position was, therefore, that if it was desirable to see the statements in order to know whether there would be any cross-examination upon them or not, opportunity was given to the defendants at that stage to apply at the commencement of the cross-examination. As regards the present case it is most important to observe what followed, for in my judgment in this case nothing requires to be decided as to the time when copies are to be asked for, that is whether the true view is that the application should be made the moment the witness enters the box or at the close of his evidence in chief

3. Let us assume for the sake of argument though I am far from holding so, that the order for the supply of the copies should have been made a couple of hours earlier than it was in fact made. The position then was this that the accused were to get reasonable facility given by the section. They had to file stamp papers upon which the copies could be made. If they did not get their copies in time their duty was to ask the learned Judge in the circumstances to adjourn the cross-examination till the next day or, at all events not to formally conclude the cross-examination in case the statements when furnished might lead the learned pleader for the defence to cross-examine further. What in fact was done smacks too much to my mind of an attempt to make a grievance. What was done was that the pleader for the defence said that it was very inconvenient for him to file folios at that stage and it was no use to get copies at a subsequent time. So he did not file any folios and did not do the necessary to get the copies. That seems to me to put this grievance out of Court altogether. I quite agree that that if in the circumstances the learned Judge had insisted on closing the cross-examination of the witnesses without giving reasonable facilities to the pleader to give his client the benefit that Section 162 confers that would have been a good ground for objecting to the fairness of the trial, In this particular case it is evident to me that the defence preferred their grievance to their copies and I do not think that we are called upon to interfere with this trial and to have it held over again because of that ground. The question has been raised in this Courtas to whether at any time after the witnesses were called before the Committing Magistrate the defendant has not the right to apply to the Court to get an order for copy. I am very far from so holding.

4. It seems to me that in this case the defence had one opportunity during the Committing Magistrate's enquiry to get a copy if they wanted. They did not avail themselves of it. I am by no means satisfied that by any construction of this section they have any further right than to go to the Judge at the time of the trial and ask that officer in that way. If this case had turned upon the question whether the learned Judges, Mr. Justice Chotzner and Mr. Justice Duval were right in the Calcutta case to which I have referred in saying that there must be a foundation laid by way of cross-examination showing that the statements are wanted to contradict the witnesses I should have thought it necessary to refer this case a to Pull Bench to have that question decided. As at present advised I am not prepared to accept that as a possible interpretation of this section. I do not think that it was any part of the intention of the amended section that the Judge has to consider whether a foundation has been laid. In my judgment that part of that decision is open to concluded. That question, however, it is unnecessary to determine for the purpose of the present case. Another question of some difficulty is whether the right time to apply for copies is when a witness enters the box or when his evidence-in-chief is concluded. That question again as I have already shown it is unnecessary to determine now in view of the course taken by the learned pleader for the defence.

5. There is a good deal to be said in favour of the view which appears to be the view of the Bombay and other High Courts that an application is to be made at the commencement of the cross-examination. There is also a good deal to be said in favour of the view that the wording of the section points to the time when the witness appears in the box. Which of these two views is the better is a matter which no doubt needs consideration. For the present purpose it is not necessary that we should endeavour to deal with that question.

6. The second objection taken in the case was that the charge against 7 of the accused that they were guilty under Section 304 read with Section 149 was bad but it appeared that certain words following 'the alternative given by Section 149 had not been inserted in the learned advocate's copy of the charge. It is clear that what the accused were charged with and what the jury was directed upon was the question whether the homicide committed by the accused 5 was of such a character that the others knew that it was likely to be committed in prosecution of the common object. I see no objection to the charge.

7. It is said with regard to appellants 9 and 10 who were given the additional two years on the ground that they had themselves committed grievous hurt upon the deceased that they should only havebeen convicted of one offence, namely, of the offence under Section 304 read with Section 149 and not of Section 324, in addition. I cannot say that on the facts of this case the objection is made out but it matters little to the appellant whether they are given five years on one charge and two years more on another or whether their sentences are raised from five years on the first charge to seven years on the first charge. It is entirely unnecessary to interfere with the conviction on that matter. In my opinion they thoroughly deserve the sentences of seven years which have been passed on them.

8. Coming to the charge various points have been taken by way of criticizm. In a case like this where there are many witnesses on either side it is almost inevitable that the charge should be long and it is more than lucky if it is not confusing. It is necessary that the charge should be long because there are many points to be considered and unless the law is laid down fully the labour of the learned Judge is apt to be in vain. The particular charge before us seems to me to be a very good charge. It is logical in method and it is in my opinion wonderfully accurate in detail. If one fastens upon a single point one can always find room for the wish that something more elaborate had been given. It is to be remembered that when each point has been further elaborated the charge has neither become less long nor less confusing. After all the constitution in this matter puts faith in the jury and the charge cannot be said to be bad unless it is really insufficient. I think the main complaint is that in some matters where the learned Judge has correctly laid down the law he has laid it down rather in an abstract way. One or two references to specific matters have been made as to which it is said that there is a suggestion which is unwarranted and to the prejudice of the defence. One refers to the observation that there is no direct evidence of forgery as regards the post-marks. Another is with reference to a witness who says that the Sub-Inspector at another place took a statement from him. Another is with reference to the fact that a defence witness said that a certain man was ill and the fees for the doctor were paid by his firm and that the entries were in the firm's books, which were not produced. Another has reference to one Aphidian who is mentioned in the first information report and who according to the prosecution witnesses including the first informant came just after the occurrence and was said not to be a useful witness. Mr. N.K. Bose has taken us through all the points in his usual reasonable and succinct manner. I cannot say that they amount to any successful concluded of this charge. In most cases the learned Judge's observation is entirely justified and it is not possible to make out from a plain statement of facts that the charge is bad. I am quite satisfied that this is a thorough and careful charge. In these circumstances the appeal must be dismissed.

Buckland, J.

9. I agree, but I desire to add a few words with reference to the point which has been argued under Section 162, Criminal P.C. The learned Sessions Judge, to whom an application was made between the commitment order and the trial, in my opinion very properly said that the matter was one to be dealt with by the Judge at the trial. The words of the first proviso to the section, 'when any witness is called for the prosecution in such enquiry or trial' must refer to a time when an enquiry or trial in which such a witness is called is in progress. This excludes the possibility of an order being made either by a Committing Magistrate after he has dealt with a case by committing it to the Sessions, or by a Sessions Judge in anticipation. An order may only be made 'when any witness is called'. The opportunity before the Committing Magistrate has gone and that before the Sessions Judge will only arrive on that point being reached.

10. A further reason in support of this view is that as soon as a request for copies of the statements is made the Court shall refer such writing, and do so before allowing copies to be furnished. The object of this is to be found in the second proviso to the section, which requires the Court first to satisfy itself whether any part of any such statement is not relevant to the subject matter of the enquiry or trial or that its disclosure to the accused is not essential in the interests of justice or is in-expedient in the public interest. Clearly the Court to satisfy itself on a question of relevancy is that before which the enquiry or trial is in progress.

11. The learned Chief Justice has said that it is not necessary to lay down for the purpose of deciding this appeal at what point the application for copies may first be made, whether directly the witness is called or after the cross-examination has begun. I may, however, add to what the learned Chief Justice has said with reference to the decision of this Court, which the learned Sessions Judge was bound to follow, that it appears to me that there is a certain amount of confusion between what the section says the Court shall do and what it says later as to the object with which that shall be done, which has tended to obscure the question as to the point of time at which an order for copies shall be made under the section.

12. Whatever may be decided in a case where the correct view to be taken of the section can be authoritatively and finally laid down I can see that with a trial going on from day to day there may be practical difficulties in the way of applying the section without delaying the proceedings or embarrassing the defence. I feel confident, however, that such difficulties will disappear as Courts and practitioners become accustomed to the provisions of this section. In this case it has been sought to derive from such difficulties a somewhat meretricious tactical advantage but in this I am satisfied there is no substance. There is no need for me to add anything more to what has already been said about the facts of this case and I agree that the appeal should be dismissed.

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