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Jabbar Sheikh Vs. Tomiz Sheikh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in17Ind.Cas.71
AppellantJabbar Sheikh
RespondentTomiz Sheikh and ors.
Excerpt:
criminal procedure code (act v of 1898) section 263 - summary trial--refusal by magistrate to take evidence, if legal--recording evidence not same as hearing evidence. - .....to find that the learned sub-divisional officer should so misapprehend the provisions of the law under section 263, criminal procedure code. that section does not excuse the magistrate from hearing the evidence of all witnesses. it excuses him from recording the evidence of any of the witnesses. but it is an elementary point that recording evidence is not the same as hearing evidence. in all criminal cases, if the accused denies the charge, the complainant and such witnesses as he may produce must be examined and the case must be decided upon the effect of their evidence. the order of acquittal is, therefore, clearly without jurisdiction, having been made without evidence having been heard.2. the order of the lower court is set aside and there will be a re-trial before any.....
Judgment:

1. This Rule must be made absolute on the ground on which it was issued. We are surprised to find that the learned Sub-Divisional Officer should so misapprehend the provisions of the law under Section 263, Criminal Procedure Code. That section does not excuse the Magistrate from hearing the evidence of all witnesses. It excuses him from recording the evidence of any of the witnesses. But it is an elementary point that recording evidence is not the same as hearing evidence. In all criminal cases, if the accused denies the charge, the complainant and such witnesses as he may produce must be examined and the case must be decided upon the effect of their evidence. The order of acquittal is, therefore, clearly without jurisdiction, having been made without evidence having been heard.

2. The order of the lower Court is set aside and there will be a re-trial before any Magistrate the District Magistrate may direct.


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