Dohra Ahir vs Emperor

B.K. Mullick, J.—This is an application relating to a proceeding u/s 110, Criminal Procedure Code, against 11 persons. The petitioners before me are two, Dohra Ahir and Rupdhari Ahir. They attack the proceeding on the ground that the notice issued upon them is indefinite and does not comply with the previsions of section 110, Criminal Procedure Code. It is contended by Mr. R.L. Dutt, who appears on behalf of the petitioners, that it was the duty of the Magistrate to detail in the notice each of the particular offences in respect of which the petitioners were suspended and he relies upon the case of 47 Ind. Cas. 277 in support of his contention. Now the notice charges the petitioners with having been habitual robbers, receivers of stolen properties, habitually practising theft, and habitually committing offences involving a breach of the peace; in my opinion it is not possible in respect of charges such as these to give detailed information as to the nature of the evidence which the prosecution intend to adduce at the trial. If the evidence takes the petitioners by surprise, then clearly the petitioners have a right to ask the Magistrate for sufficient time, after the evidence has been disclosed, to commence their cross-examination. In the present case I find that no application for time was made, but on the contrary the Mukhtar of the petitioners entered into cross-examination at great length find actually cross examined 40 witnesses before the present application for revision was made. Therefore, the objection that the petitioners were taken by surprise does not appear to me to be well founded.

Then it is contended that in the notice there was no mention of the charge that the petitioners were of a desperate and dangerous character. Now it appears that after the first witness for the prosecution had been examined, a witness was called for the prosecution who stated that there was material in the Police report for a charge under this head. It is not known whether the trying Magistrate intends to proceed against the petitioners under clause (f), section 110, Criminal Procedure Code, and till an order under this clause is made, it is not open to the petitioners to take the objection that a joint trial in respect of a charge under this head is illegal; it may be that the Magistrate is proceeding only in respect of those clauses which permit a joint trial of several accused; therefore, it appears to me that there is no error of jurisdiction. The proceeding having been regularly instituted, the question is, whether the Trying Magistrate has shown bias against the petitioners so as to render himself incompetent to proceed with the trial. Now an affidavit has been filed by the petitioners charging the Magistrate with having illegally stopped cross examination. It is said that the Mukhtar for the petitioners was obliged to retire from the case because the Magistrate declined to allow him to cross examine. The Magistrate''s reply to the affidavit has been submitted to as by the District Magistrate, and it does not appear from that reply, which I accept as true and correct, that the Magistrate has bean guilty of any display of animus against the accused. He cautioned the Mukhtar at the beginning of the trial against irrelevant cross examination. The Mukhtar declined to go on with the case and the Magistrate persuaded him to reconsider his decision and to proceed. At a later stage again the Mukhtar committed the same offence and upon the Magistrate''s declining to permit irrelevant cross examination the Mukhtar withdrew from the case.

It is contended by Mr. R.L. Dutt that the Magistrate has declined to record material questions and material answers. It is impossible for me to judge upon this point, but from the report of the Magistrate this does not appear to be a correct statement of fact. If the Magistrate has irregularly shut out cross-examination, I understand that the petitioners have already placed upon the record several petitions detailing particular questions which he has declined to allow, and in the event of the petitioners being bound down, they will have an opportunity of moving the District Magistrate u/s 125, Criminal Procedure Code, and showing him the irregularity in the proceedings of the trial Court. But at the present stage I am quite unable to accede to the prayer that I should intervene and hold that there has been in fact such an irregularity in procedure that the case must be transferred from the file of the trying Magistrate to that of some other Magistrate.

The learned Vakil for the petitioners has also drawn attention to an incident which occurred in Court between the Mukhtar and the Court Sub-Inspector in respect of a note book. He states that this book contained Police papers, and that he asked the Court to examine this book in connection with the trial. There is nothing whatsoever to show that this book contained Police papers, and the learned Vakil was unable to make a definite reply when I asked him whether or not he knew as a fact that there were Police papers in that book. It does not appear that the Magistrate has bean guilty of any irregularity in this matter.

I have to observe in conclusion that even in this Court the petitioner''s Vakil has not hesitated to criticise adversely the improper conduct of the trying Magistrate. He has not hesitated to state in open Court before me that the Magistrate is under the thumb of the Police. Now this observation has been made without any foundation whatsoever, and I did not expect it from a senior lawyer of the standing of the learned Vakil.

The application is dismissed.