Ishar Singh and Others vs Shama Dusadh and Others

Mohamad Noor, J.—On the complaint of one Muhammad Naseer the petitioners Ishar Singh and two others are being tried in two cases before the Sub-Deputy Magistrate of Nawadah, one u/s 379, I.P.C., and the other u/s 325, I.P.C. Originally there was one case, but the learned Magistrate separated the trial of the two offences. The prosecution evidence in both the cases was closed and some defence witnesses were examined. Thereafter certain incidents happened on which the petitioners have applied to this Court for the transfer of the cases to some other Court. In order to appreciate the grounds on which the transfer is sought, it is necessary to state some facts of the cases separately. Criminal Misc. Case No. 20 of 1936 arises out of the case u/s 379 and Criminal Mise. Case No. 19 arises out of the case u/s 325, I.P.C.

Criminal Misc. Case No. 20 of 1936

In this case seven prosecution witnesses were examined on 14th March 1936, and they were cross-examined and discharged on 26th March 1936. The learned Magistrate fixed 14th April 1936 for examination of the defence witnesses. It appears that the accused made delay in filing the list of defence witnesses which they did on 8th April 1936. One of the witnesses namely Janki Rasik, was to be summoned from Ajodhya and a dasti summons was issued against him, that is to say summons was made over to the accused to serve it upon the witness.

On the 14th April the accused were examined u/s 342, Criminal P.C., and three defence witnesses were examined and discharged. The accused wanted adjournment, on the ground that Janki Rasik was not present. The Magistrate allowed Rs. 10 costs to the complainant and then again issued dasti summons against the witness at the risk of the accused and fixed the 20th April for his examination. On the 20th the witness again did not appear, and it is noted in the order sheet that accused did not wish to examine any more witnesses. Thereafter the 25th April was fixed for argument. On that date the Court Sub-Inspector applied that a charge u/s 75, I.P.C., be framed against one of the accused, Isri Singh. This was done and explained to the accused who did not admit the alleged previous conviction. The 22nd April was fixed for examination of witnesses to prove the alleged conviction. On that day the learned Magistrate examined one witness to prove the previous conviction and thereafter the accused filed an application for adjournment in order to enable them to move this Court for transfer of the case. This was refused, but later on, on a second application presented on the 24th April 1936, the learned Magistrate granted the adjournment and the application for transfer was filed in this Court.

It is contended on behalf of the petitioners that the procedure adopted by the learned Magistrate has created a reasonable apprehension in their minds that they would not get justice from the learned Magistrate. I do not however think so. In fact Mr. Baldeva Sahay, when he obtained this rule from me indicated that, if the petitioners be given an opportunity to examine Janki Rasik and the irregularity about the recording of the evidence of the previous conviction at that stage be rectified, be would not strongly press for the transfer of the case. That some irregularity was committed in this case has been conceded by the learned Government Pleader who could not do otherwise. The most important irregularity is that the learned Magistrate examined a witness to prove the alleged previous conviction of Isri Singh before his conviction. The learned Magistrate in his order of adjournment has asked this Court to give a dear finding whether the procedure adopted by him was wrong. He has also referred to the inconvenience which will be caused in case the provision of Section 255-A of the Code be strictly complied with. I entirely agree with him that the procedure prescribed in the section is inconvenient, though not impossible to follow. I see no advantage of it in cases tried by a Magistrate under the procedure laid down for the trial of warrant cases. What however the section says is dear. It means that the Magistrate should first write out a judgment of conviction without passing sentence. Then, if the accused had denied previous conviction, he should proceed to take evidence to prove it.

This is the procedure in case an accused is tried by the Court of Session either with the aid of assessors or by jury. Prior to the amendment of 1923 this procedure was not prescribed for Magisterial trials, but the procedure has been deliberately laid down and has to be followed, though I agree with the learned Magistrate, as I have said, in holding that no advantage is to be gained by this procedure. There is good reason for keeping back the evidence of the previous conviction from the jury or assessors who are not trained Judges and are likely to be prejudiced if the evidence of previous conviction be given before the actual guilt of the accused has been established. But this danger does not exist in trials by Magistrates alone. It must however be borne in mind that the Courts are not legislators; they have to carry out loyally the direction of the legislature. They can only interpret it. We can only express our opinions about the reasonableness of a particular provision of law and point out the difficulty in administering it. But as long as the law remains as it is, it is the duty of the Court to obey it explicitly. In this particular case, however, I am sure the learned Magistrate has not committed this irregularity intentionally. Perhaps his attention was not drawn to the wording of the section, otherwise he would not have examined the witness at this stage.

Now the mischief has been done, the question arises, what should now be done? The learned Government Pleader has suggested that I should order the evidence to be expunged and to direct that the witness should be examined again after the conviction of the accused if conviction there be at all. This will be worse than useless. The evidence cannot be obliterated from the mind of the learned Magistrate. Even if I transfer the case to another Magistrate, it is too much to expect that the Magistrate to whom the ease will he sent will not know that evidence of previous conviction was recorded. Transfer therefore will be of no benefit to the accused. On the other hand I am absolutely certain that the learned Magistrate has not been and could not have been in any way prejudiced by the evidence of the previous conviction recorded, particularly when the alleged previous sentence was a fine of Rs. 10 u/s 380, I.P.C. said to have been passed 13 years ago in 1923. If the accused Ishri Singh is the man who is referred to in the extract produced in this case the offence committed by him must have been of a very trifling nature or perhaps of a technical nature. Such an old conviction and the trifling fine cannot reasonably be used even for the purpose of Section 75, I.P.C. Much less is it likely to influence the mind of the learned Magistrate in order to convict the accused in the present case. However, the evidence has been irregularly recorded, and I think the best course will be to order it to be expunged and that the charge u/s 75, I.P.C., be cancelled altogether, as it is of no practical value.

The next ground on which the learned advocate for the petitioners asks me to transfer the case is that the learned Magistrate did not give him facility of calling his defence witnesses and ordered the accused to pay costs to the complainant. Here again I am sure the course which the learned Magistrate adopted was not due to any bias in his mind and the accused themselves are to a large extent responsible for the situation which has arisen. They filed the list of witnesses late and the learned Magistrate was anxious to finish the case. I however, think that he ought to have been a little more indulgent. It is always desirable that in his anxiety to dispose of a case the Magistrate should not act in a manner which may raise a fear in the mind of the accused that he has already made up his mind. It is true that the petitioners delayed in filing their list of defence witnesses, but the list was accepted which included the name of Janki Rasik, and it is dear that the learned Magistrate did not consider that the witness was being summoned in order to cause delay in the trial of the case. He ought therefore to have seen that the witness attended the Court. He ordered him to be summoned but gave dasti summons to the accused. I am not sure whether the accused willingly accepted it or whether he had no option in the matter. Ordinarily it is the duty of the Court to summon defence witnesses unless it finds that the accused is summoning them for the purpose of vexation or delay.

I do not find anything in the order of the Magistrate to suggest that the accused wanted Janki Rasik for causing delay. When the witness did not appear on 14th April the learned Magistrate again directed a summons to be issued dasti at the risk of the accused and ordered Rs. 10 to be paid to the complainant. It would have been much better if the learned Magistrate had secured the attendance of Janki Rasik without saddling the accused with costs. I do not think the accused were very much responsible for his non-appearance. No doubt the criminal Courts are empowered to order an accused, if he asks for adjournment, to pay costs to the complainant, but this power should not be exercised in such a manner as to place obstacle in the way of the accused properly defending himself. However, this was the exercise of judicial discretion of the learned Magistrate and does not show any bias. I am satisfied that he will try the case without the least prejudice in his mind.

Now when the case was taken up on 20th April 1936, the witness Janki Rasik was not present, but the accused expressed a desire that they did not want to examine any more witness. I am not quite sure whether the accused in fact did not want to examine the witness. The summons was issued dasti and at the risk of the accused. It would have been futile on their part to ask for further time. I think facilities should be given to the accused to examine him.

Criminal Misc. Case No. 19 of 1936

This is a case connected with the case u/s 379, I.P.C., and an application for its transfer was filed because of the orders passed in that case. There has been no irregularity in it except perhaps the fact that the accused were called upon to submit their list of defence witnesses before the cross-examination of all the prosecution witnesses was finished. Strictly speaking the accused cannot be called upon to enter into his defence until all the prosecution witnesses have been exhausted, and till then under the law the Magistrate cannot ask the accused to file the list of his defence witnesses. Much grievance cannot however be made of it. I however understood from Mr. Baldeva Sahay, when he obtained the rule from me, that his clients wanted to examine Janki Rasik in this case also. I think this should be allowed. But before I pass orders I have to make one or two observations. The learned Magistrate has invited this Court to express its opinion whether an application for adjournment u/s 526 is entertainable after the defence witnesses have been examined but before the close of the argument. I do not think I am called upon to decide this point in this case as it does not arise; any expression of my opinion will be purely obiter dictum. It may however be said with some justification that if the defence argument has not concluded, the defence case has not been closed. I am not prepared to say that there cannot be a case in which the accused cannot justly say that the Court became prejudiced during the bearing of the argument.

There is one matter more, and it is this. I find from the order-sheet of the learned Magistrate, dated 21st May 1936, that he was informed that this Court had admitted the application for transfer but did not stay the case as the affidavit did not show that any stay order was passed. Now, when this Court admits an application for transfer invariably there is an order of stay of proceedings. Even if the order is not expressly made it is implied, because it will be meaningless to issue a rule and send for the record and then allow the proceedings in the lower Court to continue. The result is that the applications for transfer are rejected. The charge u/s 75, I.P.C., and the evidence recorded in support of it will be expunged from the record. The trial of the two cases shall proceed from the stage to which they have reached. The accused, if they ask for a process to compel the attendance of Janki Rasik, either in one case or in both the cases, such process will be issued by the Court and steps will be taken to compel his attendance if the accused so desires. And, after the hearing of the defence witnesses and the arguments of parties, the learned Magistrate will dispose of the case according to law.