Brahmdeo Singh and Another vs Emperor

Sultan Ahmed, J.—This is an application to set aside an order u/s 476 of the Code of Criminal Procedure, passed by the Sub-Divisional Magistrate of Sitamarhi, dated the 16th April 1920, directing the prosecution of the petitioners u/s 193, Indian Penal Code.

It appears that the petitioner, Brahmdeo Singh, lodged a complaint against Aklu and some others for offenses under Sections 143 and 379, Indian Penal Code. At the trial of this case the petitioners were examined as witnesses. Brabmdeo was asked whether he had been ever bound down to keep the peace u/s 107, and his answer was that he had not been bound down. The other petitioner Lal Bahadur was asked whether his father had been bound down u/s 107, and his answer was that he did not remember. The accused Aklu and others in that case were ultimately acquitted on the 9th January 1920. Subsequently, an application was filed before the Sub-Divisional Magistrate drawing his attention to the statements made by Brahmdeo and Lal Bahadur as witnesses in that case, and it was alleged that the statement of Brahmdeo that he was not bound down u/s 107, and the statement of Lal Bahadur that he did not remember that his father had been bound down u/s 107, were false. The learned Sub Divisional Officer thereupon, by his order u/s 476, directed the prosecution of the petitioners u/s 193, as I have stated above.

The order against Lal Bahadur, in my opinion, is wrong on two grounds; firstly, that the question put to him in a trial for offenses under Sections 379 and 147, Indian Penal Code, whether or not his father had been bound down u/s 107, was absolutely irrelevant and ought not to have been allowed to be put to the witness by the Trying Magistrate and, therefore, the statement made by him was not at all relevant to the case and besides, it was not a material statement at all. Secondly, the order is bad against both the petitioners on the ground that their statements were not read over to them in accordance with the provisions of Section 360 of the Code of Criminal Procedure, Section 360 lays down that "as the evidence of each witness taken u/s 356 or 357 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."

It appears from the order of the Sab-Divisional Magistrate, referred to above, that the provisions of this Section 350 were not complied with and that the evidence was not read over to the witnesses, the petitioners, in the presence of the accused or their Pleader, The learned Sub-Divisional Magistrate is under the impression that this rule is Only for the benefit of an accused person and has no effect whatsoever as regards witnesses. This is clearly an erroneous view of the law. It was laid down in the case of Jyotish Chandra Mukerjee v. Emperor 4 Ind. Cas. 416 : 36 C. 955 : 14 C.W.N. 82 : 10 Cri. L.J. 581 that Section 360 of the Code of Criminal Procedure is mandatory. The evidence given by a witness must be read over to him in the presence of the accused or of his Pleader. Mr. Boys in his well-known commentary on the Code of Criminal Procedure, dealing with this point, says, and I folly agree with him, "that the accused or his Pleader should be allowed time to listen to the statements being read, if they so desire. If they were not entitled to this privilege, there would be no use in the provision that it must be read over in their presence. It is not often that an ignorant witness expresses a desire to make any correction. His mind does not often work quick enough. But Counsel on either side are not infrequently able to detect serious mistakes in recording." He also says that in the case of Okhoy Kumar, In the matter of 7 C.L.R. 393 it was clearly laid down that the section itself is for the protection of witnesses."

The learned Magistrate in his explanation says that in practise he kno vs of no Court in which this rule is strictly carried out. In this connection, I cannot do batter than quote the language of his Lordship the Chief Justice Sir Lawrence Jenkins, in the case of Jyjtish Chandra Mukehrjee v. Emperor 4 Ind. Cas. 416 : 36 C. 955 : 14 C.W.N. 82 : 10 Cr. L.J. 581, referred to above. In that case his Lordship observed as follows: "But such a departure from the terms of the Criminal Procedure Code might lead to considerable embarrassment and place a serious impediment in the proper administration of justice, for there are cases in which it has been held that, for the purposes of a prosecution on the ground of perjury, depositions to which the procedure laid down in Section 360 has not been applied, cannot be properly used, I, therefore, trust that if the practice exists, it will be discontinued in deference to the clear direction of Section 360, Criminal Procedure Code."

These observations ware made in 1909, and I do hope that in spite of the statement of the Sub-Divisional Magistrate to the contrary, the Subordinate Judiciary has taken a lesson from the language used by his Lordship the Chief Justice, Sir Lawrence Jenkins, in the case of Jyotish Chandra Mukerjee v. Emperor 4 Ind. Cas. 416 : 36 C. 955 : 14 C.W.N. 82 : 10 Cri. L.J. 581, referred to above; and I hope that the practice, which the learned Sub Divisional Magistrate says exists, does not as a matter of fast, exist.

The result is that the order of the Sub-Divisional Magistrate, dated the 16th April 1920, in my opinion, is clearly erroneous and the direction to prosecute the petitioners u/s 475, Criminal Procedure Code, must, therefore, be set aside.