Emperor vs Jogendra Nath Ghose

Sharfuddin and Teunon, JJ.—This is a reference made by the Sessions Judge of Darbhanga u/s 438 of the Criminal Procedure Code. It appears that the prosecution of the petitioner before him has been directed u/s 193 of the Indian Penal Code with reference to a deposition given by that witness in a case against one Bank a Singh. The Sessions Judge has recommended that the order directing the petitioner''s prosecution should be set aside on the ground that, in respect of that deposition, the provision of Section 360 Sub-section (1) of the Criminal Procedure Code has not been complied with. The explanations submitted by the trying Magistrate, his officer, and the District Magistrate show that what happened was that, after the deposition had been recorded, the record was handed over to the petitioner. He thon proceeded to read it over himself. We are of opinion that that is not a sufficient compliance with the provisions of Section 360 Sub-section (1) of the Criminal Procedure Code, inasmuch as that Sub-section requires that the evidence should be read over in the presence, that is, in the hearing of the accused, in order that the accused should have an opportunity of correcting any mistake in it. On the authority, therefore, of the ease cited by the learned Sessions Judge [Mohendra Nath Misser v. Emperor 12 C. W. N. 845 and also on the authority of the case of Jyotish Chandra Mukerjee v. Emperor I. L. R (1909) Cal. 955 we must hold that this deposition is inadmissible in evidence. The order for the prosecution of the petitioner must be set aside.

We would further point out to the District Magistrate that in this case, in his order for prosecution, or in any proceeding referred to therein, he has tailed to set out the statements alleged to be false.

We further find from his explanation that, though he made a preliminary enquiry u/s 476 of the Criminal Procedure Code, and presumably examined witnesses in the course of that enquiry, he has made no record of their statements. We do not find in the Criminal Procedure Code any provision with regard to the manner in which the evidence in such enquiry should be recorded. But we are of opinion that for future reference a summary of the statements should have been made.

The petitioner is discharged from his bail. E. H. M.