Abdul Hamid vs King Emperor

Mullick, J.—It is most unfortunate that there must be a retrial in this case.

Of the four accused persons tried by the Sub-divisional Magistrate of Araria, Bati Lal appeared on the 8th July 1921. Abdul Razak and Sultan on the 23rd August 1921 and Abdul Hamid on the 2nd September 1921. The next material date was the 17th March 1922; on that date all the accused with the exception of Abdul Hamid, were present and the Court recorded the following order:

Accused Hamid absent. Said to be ill. Applies for appearance by Mukhtar. Permitted, 3 prosecution witnesses examined at length. Tomorrow for further hearing.

It appears that a Mukhtar named Babu Sheo Nandan Lal was permitted to represent Abdul Hamid, and some witnesses for the prosecution were then examined in chief on various dates in his presence between the 17th March and the 19th May when the Court recorded the following order:

Accused Hamid absent, said to be ill. Permitted to appear through Babu Bajrang Sahay, Mukhtar.

The reason for appointing another Mukhtar to represent Abdul Hamid, is not stated in order, but a possible reason has been suggested by the learned Counsel for the Petitioner to which reference will be presently made. Between the 19th May and the 27th July more prosecution witnesses were examined in chief. On this last mentioned date Abdul Hamid attended and on the 29th July a charge under S. 420, I.P.C. was framed against him and his three co-accused. On the 15th August Abdul Hamid gave a vaka(sic) to a pleader named Babu Charu Chandra Mazumdar who appeared for him and the cross-examination of the witnesses for the prosecution began on that date in his presence and the case continued till the 31st January 1923 when it ended in the conviction of all the accused.

Now the point made before us is that the trial is bad because the Deputy Magistrate had no power to allow Abdul Hamid to be represented by a Mukhtar and to hear the examination-in-chief of the prosecution witnesses in his absence. I think this contention must prevail. S. 205, Cr. P. C. applies only to cases in which the Magistrate has issued a summons in the first instance. It does not apply to a case such as the present where the accused has been arrested without or after the issue of a warrant. It would also appear that Abdul Hamid never asked to be represented by a Mukhtar or Pleader, but I doubt whether the defect in jurisdiction would have been cured even if there had been an express request on his part; for if the Magistrate had no jurisdiction to hear the case in the absense of the accused, jurisdiction could not be confirmed by any consent. The Magistrate seems to have been under the erroneous impression that Abdul Hamid had made a petition and the fact seems to be that the accused Abdul Razak signed and filed a petition, the body of which purports to be a petition by Abdul Hamid requesting for permission to appear by proxy. It does not appear that Abdul Razak had any authority to make any application on behalf of Abdul Hamid and the petition is unlit eligible unless it be taken as a request by Ablul Razak to allow Abdul Hamid to be represented by proxy in order that the case against Abdul Razak might not be further delayed. The order pissed upon this by the Magistrate was that Abdul Hamid was to be represented by Mukhtar Babu Sheo Nandm Lal; but this gentleman was not Abdul Hamid''s Mukhtar at all and how he came to be appointed is not known. In Abdul Razak''s petition it was prayed that either Moulvi Farduddin or Babu Bajrang Sahay might be appointed to represent Ablul Hamid and it seems that on the 19th May finding that Babu Sheo Nandan had no authority to appear for Abdul Hamid the Magistrate recorded an order permitting Bajrang Sahay to represent him.

Therefore in this case the Deputy Magistrate''s order was bad for two grounds : firstly, because it was not a case in which a summons had been issued, and secondly, because the accused had never asked for permission to appear by his Pleader or Mukhtar.

The fact that the accused did not take the objection in the trial Court does not appear to me to be material. If the defect could be cured by S. 537, Cr. P. Code, his acquiescence would have been an important factor, but as in my opinion there was a complete absence of jurisdiction to hold the trial in his absence the question of S. 537 does not arise.

The result is that the conviction and sentence passed upon Abdul Hamid will be set aside and the case will be remanded to the Sub-divisional Magistrate of Araria for a de novo trial.

The Petitioner will surrender before the District Magistrate when called upon to do so.

Bucknill, J.

I agree.