Biseswar Singh and Subedar Singh vs Emperor

Jwala Prasad, J.—The petitioner have been convicted by the Sub-Divisional Officer of Chapra u/s 379, Indian Penal Code, and have been sentenced to two months'' rigorous imprisonment. Their conviction and sentence have been upheld by the Sessions judge in appeal,

Both the petitioners have separately applied to this Court, which has given rise to Criminal Revisions Nos. 92 and 93, For convenience sake they may be disposed of by one order, inasmuch as the evidence recorded in both the eases is the same and also the lower Court has disposed of them by one judgment.

One of the principal grounds upon which the trial has been challenged on behalf of the petitioners is that no opportunity was given to the petitioners to cross-examine one of the principal witnesses on behalf of the prosecution, named Fauzdar Ahir (P.W. No.5). The objection was raised in the Courts below but was overruled.

The accused were seen going to the Sonepore fair along with a boy, who had the shawl (Khes) in question over his head. The Sub-Inspector of Police (P.W. No.4) suspected of foul play and asked the constable (P.W. No.3) to enquire about it from the boy. On the statement of the boy that the Khes was given to him by the petitioners to be carried on payment of annas two, the petitioners were sent up for trial. The occurrence took place on the 1st of December, The charge was submitted on the 2nd of December. The Police recommended Fauzdar Ahir to be released as there was no case against him and that he was in bona fide possession of the Khes in question. As regards the two petitioners the Police reported that the charge u/s 379, read with Section 411, Indian Penal Code, was proved. The petitioners were released by the Police on bail or recognisance and were directed to appear on the 3rd of December before the Magistrate who was holding his Court in the fair itself at Sonepur.

The petitioners accordingly appeared on the 3rd of December, and witnesses for the prosecution, five in number, were examined and the charge was framed. The petitioners were asked whether they would cross examine the witnesses, but they declined to do so. The witnesses were accordingly discharged. The case was then adjourned to the 11th of December at the instance of the Court Inspector, who wanted to make further enquiry into the antecedents of the accused.

On the 11th of December the case was taken up at Chapra. Probably by that time the Sonepur fair was over. The petitioners then, apprently under legal advice, applied for summoning the prosecution witnesses for cross examination u/s 257 of the Code of Criminal Procedure. The Magistrate granted their prayer, As regards Fauzdar Ahir (P.W. No.5) the Magistrate issued the summons on the condition that in case he did not appear on the next date fixed for the hearing, namely, the 16th December, he would not be re summoned. Fauzdar Ahir is a resident of Mauza Husainpur, Gopalganj Sub-Division. The contingency as apprehended did happen and the witness did not turn up on the 16th of December, The service return was not received by the 16th of December and the case was adjourned to the 22nd of December.

On the 22nd of December one prosecution witness and four defense witnesses were cross-examined. The summons could not be served upon Fauzdar Ahir and, therefore, he did not appear. The request made on behalf of the petitioners to enforce his attendance was refused, with the result that the case was decided without the cross-examination of Fauzdar Ahir.

True, the application of the petitioners to summon the witnesses was made u/s 257 of the Code of Criminal Procedure, inasmuch as they had not availed of the opportunity of cross-examining the witnesses after the charge was framed. Under the section the Court had discretion to refuse the application to summon the witnesses on the ground that "It is made for the purpose of vexation or delay, or for defeating the ends of justice." The section further requires that such a ground shall be recorded "by him (the Magistrate) in writing." I doubt whether the following words in the order sheet of the Magistrate, "I have no objection on the condition that if he does not appear on the 16th I will not resummon him," are a sufficient compliance with the requirements of the aforesaid section. It may be that the Magistrate was hesitating to summon the witness on the ground of delay. In case where the accused has either cross-examined or has the opportunity of cross-examining any witness after the charge is framed, the proviso to Section 257 says, "the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purpose of justice." The learned Sessions Judge has apparently applied the proviso to that section in overruling the contention of the petitioners, by holding that even if the evidence of this witness be deleted, the evidence on the record is sufficient for the conviction of the petitioners. Technically speaking, an opportunity was given to the accused after the charge was framed and that opportunity was not availed of by them. The question, therefore, is, as has been put by the learned Sessions Judge, not of there being any illegality in the order of the Magistrate, but as to whether the discretion has been properly used and the accused have or have not been prejudiced by the refusal to summon the witness in question. As stated above, the charge sheet was submitted on the 2nd of December and the case was taken up on the 3rd of December. The prosecution witnesses were all examined on that date and the charge was framed. There was, therefore, hardly any time for the accused to get legal advice in the place where the Magistrate was holding the trial. It was only after the trial was taken up at the headquarters in Chapra that the accused obtained legal advice and made the application for summoning, amongst others, the witness in question, Fauzdar Ahir. Taking into consideration the fact that the conviction in the present case rests entirely upon circumstantial evidence and the first and the foremost witness was Fauzdar Ahir, the boy on whose head the khes in question is said to have been carried by the accused, the evidence of Fauzdar Ahir is of great importance to the petitioners. The necessity of his cross-examination is intensified by the comparison of his statement (Exhibit A) made just after the occurrence to the Sub-Inspector of Police (D.W. No.1) with his statement in Court, The principal statements whereby the complicity of both or any one of the accused could be proved, require to be further elucidated and tested by cross-examination.

I, therefore, hold that it was necessary for the ends of justice that the witness Fauzdar Ahir should have been summoned for cross-examination and that the accused have been prejudiced by no opportunity of cross-examining the said witness having been given to them u/s 257 of the Code: Vide Ramyad Singh v. Emperor 58 Ind. Cas. 686 : 1 P.L.T. 112 : (1920) Pat. 59 5 P.L.J. 94 : 21 Cr. L.J. 814.

I will accordingly set aside the conviction of, and the sentence passed on, the petitioners and direct re-trial. If the Magistrate is the same, there will not be any necessity of examining the witnesses de novo who have been already cross examined. Only witness, Fouzdar Ahir (P.W. No.5), will be summoned and cross-examined on behalf of the accused. It also appears that the accused were examined on the 3rd of December, and they said that they would file a written statement, which they did not do, It will be open to them to file any written statement they like or to make any statement in this case u/s 342 of the Code of Criminal Procedure.