1. One of the grounds upon which the present Rule has been issued relates to the non-compliance of the provisions of Section 360, Cr. P.C, in recording the depositions of the witnesses examined in the proceedings.
2. By the terms of Section 356, Cr. P.C., the evidence of witnesses examined in inquiries under Chap. XII has to be recorded in the manner provided for by that section. Section 360, Sub-section (1) expressly refers to Section 356 and lays down that as the evidence of each witness taken under Section 356 is completed it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. Then follow Sub-sections (2) and (3) which need not be quoted. Sub-section (1) does not make any reservation or exception in respect of evidence recorded in inquiries under Chap. XII, and on the face of it makes Section 360 applicable to all evidence recorded under Section 356. On principle also very little distinction can be made between enquires under Chap. XII and other enquiries or trials. In my judgment in the case of Hira Lal Ghosh v. The King-Emperor : AIR1924Cal889 . I have discussed the intention of the legislature in enacting this provision and I can see nothing on which I can reasonably make-a distinction.
3. The only difficulty is created, as has been urged on behalf of the Opposite Party to this Rule, by the use of the word 'accused' in Sub-section (1) of Section 360. I am inclined to take the view that the word has been used in its wider significance as meaning a person over whom a Criminal Court is exercising jurisdiction.
4. In my opinion Section 360, Cr. P.C., is applicable to enquiries held under Chap. XII and inasmuch as admittedly the provisions of that section have not been complied with, the enquiry was vitiated. The order must therefore be set aside and the Rule made absolute.
5. It will be open to the Magistrate to take further proceedings if there is still any apprehension of a breach of the peace.
6. I agree.