Mohinder Singh vs Judicial Magistrate Ist Class, Ludhiana and others

Kulwant Singh Tiwana, J.—The facts leading to the filing of this petition u/s 482, Criminal Procedure Code, 1973 and Article 227 of the Constitution of India are that Mohinder Singh Petitioner is married to Smt. Chhoti alias Surjit Kaur. Smt. Chhoti filed proceedings u/s 488, Code of Criminal Procedure (1898) against the Petitioner which were registered in the Court of Judicial Magistrate 1st Class, Ludhiana, as Application No. 16/4 of 1972, Chhoti v. Mohinder Singh. After trial the learned Judicial Magistrate accepted the application of Smt. Chhoti and awarded Rs. 50/- per month as maintenance to her. A revision against the order of maintenance which the Petitioner took before the Additional Sessions Judge, Ludhiana, was unsuccessful. The Petitioner filed on 23rd October 1975 the present petition before this Court on various grounds.

On 5th March, 1976 another application Criminal Misc. No. 1246 of 1976 was filed for permission to file additional grounds for quashing the orders already challenged. This application was allowed subject to just exceptions and the Petitioner took the ground that Smt. Malkiat Kaur sister of Smt. Chhoti was married to Harnek Singh brother of the Petitioner. Malkiat Kaur had also filed the proceedings for maintenance against Harnek Singh in the same Court at Ludhiana and the same was registered as No. 15/4 of 1972. The learned Magistrate did not record the evidence in Application 16/4 of 1972 but copied out the evidence which he had recorded in Application 15/4 of 1972 Malkiat four v. Harnek Singh. On the application of the Petitioner the files of both the cases, that is, Chhoti v. Mohinder Singh and Malkiat Kaur v. Harnek Singh were sent for in this Court.

With the help of the counsel for the parties I have gone through the evidence of the parties and find that the statements of Rattan Dass (P. W. 3) Sadhu Singh (P. W. 4). Ranjit Singh (R. W. 4) and Kartara (R. W. 5) are recurded in original in case Chhoti v. Mohinder Singh Application No. 16/4 of 1972 A perusal of the file of case No. 15/4 of 1972 Malkiat Kaur v. Harnek Singh of the Court of Judicial Magistrate Ist Class Ludhiana shows that the carbon copies of the statements of Rattan Dass (P.W. 3), Sadhu Singh (P.W. 4), Ranjit Singh (R. W. 4) and Kauara (R. W. 5) are placed on the record of this case, i.e. 15/4 of 1972. A further examination of these riles shows that the statement of Niranjan Singh (P. W. 6) was recorded in case No. 15/4 of 1972, that is Malkiat Kaur v. Harnek Singh and its carbon copy is placed in case No. 16/4 of 1972 Chhott v. Mohinde Singh as the statement of Niranjan Singh (P. W. 6).

A joint study of both the cases Malkiat Kaur v. Harnek Singh Application No. 15/4 of 1972 and Chhoti alius Surju Kaur v. Mohinder Singh Application No. 16/4 of 1972 decided by the Judical Magistrate 1st Class, Ludhiana shows that the statement of Niranjan Singh (P. W. 6) was recorded in Malkiat Kaur''s A carbon copy of his statement prepared in the same process''s was placed as P. W. 6 in Chhoti''s case. In that copy the cuttings and the spellings of incorrectly written words are exactly the same. A lock or the statement of Niranjan Singh (P. W. 6) in Chhoti''s case leaves no room for doubt that this witness was not examined in a regular manner in this case.

Shri Kirpal Singh, Learned Counsel for the Respondent, has urged that this is only an irregularity and not an illegality and is curable. He has cited a decision of the Calcutta High Court on Dulal Chandra Brar v. The State of West Bengal 1963 (1) Cri. L.J. 521, wherein the facts were that a large number of cases for the violation of the provisions of the Companies Act were tried by the Presidency Magistrate, Calcutta. In majority of the cases the witnesses were not examined and copies of the statements recorded in one case were placed on the file of the remaining cases. On these facts it was held as under:-

That in the circumstances a presumption u/s 14 Illustration (e) Evidence Act, that the Judicial acts have been regularly performed, arose The defect in the record of depositions, if any, would be non compliance with provisions of Sections 356 and 360 Code of Criminal Procedure and such defect in the absence of actual or possible failure of justice was curable under Sections 535 and 537, Code of Criminal Procedure and did not affect the legality of the trial Moreover, the trial being by a Presidency Magistrate the provisions of Sections 356 and 360 were not applicable but the cases were governed by Section 362(4) Criminal Procedure Code under which the record of evidence was not at all necessary Therefore, there was neither an illegality nor an irregularity.

The facts of this case are not akin to the facts of the case in hand, Section 262 Code of Criminal Procedure (1898) prescribes a separate and different procedure for the recording of the evidence the Presidency Magistrate in those cases in which appeal was not permitted by the statute. u/s 362(4) of that Code the Magistrate was not obliged to record the narration of the witnesses but was only to record the substance of the evidence necessary.

The case in hand was u/s 488 of the Code of Criminal Procedure (1898) and sub-settion (6) of that section provided that evidence in the case shall be recorded in the manner prescribed in the summons-cases. Section 244, Code of Criminal Procedure (1898) which governs the proceedings of this case provides a mode for the trial of summons-cases is as under:

If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant if any, and take all such evidence as may be produced id support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence:

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The above quoted provisions of Section 244(1) Code of Criminal Procedure (1898) makes it clear that the evidence in cases u/s 488, Code of Criminal Procedure (1898) has to be recorded like a summons case. Unless the statute otherwise provided examination of the witnesses has to be done in accordance with Section 137 Evidence Act, which is as under:

The examination of a witness by the party who calls him shall be called his examination-in-chief,

The examination of a witness by the adverse party shall be called his cross-examination.

The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

The law does not permit the taking up of two cases by one Magistrate or Presiding Officer at one and the same time, nor is it possible for any One to do so. Similarly one witness cannot be examined at one and the same time in two cases. Unless it is accepted that the two cases were taken up simultaneously and evidence was recorded in both of them at the same time the procedure adopted by the learned Magistrate in these cases cannot be justified. This infringes provisions of the Indian Evidence Act and rights of the parties to examine or cross-examine the witness in the manner they like. The placing of the carbon copies of the testimony of a witness recorded in the other case would no doubt be a matter of convenience for the Court and the lawyers but it definitely prejudices the rights of the parties in the matter of examination of the witnesses. In similar circumstance, in Maung Pa v. Emperor AIR 193 Rang 100, the evidence of a witness of a witness in cross cases was typed from one to the other and it was observed -

The evidence shows c early that the evidence for the prosecution in one case has been recorded practically word for word as the evidence for the defence in the other and vice versa. The evidence has been copied so exactly that is places the words "present accused" have been included where they are in appropriate because the evidence has been taken bodily from the other case.

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It is clear that this serious defect in the trial of this case renders the trial invalid.

In a decision of this Court in Ram Singh v. The Crown AIR 1951 Simla 178, under similar circumstances the proceedings were held to be bad. In that case the statement of the approver was typed out in another case. On these facts it was observed (paras 17 and 18):-

From what is stated above, two inferences are deducible (1) that the examination in-chief of Gurbachan Singh recorded at Trial No. 15 of 1948 on September 15, 1943 ; was adopted at the exam-nation-in-chief of Gurbachan Singh at Trial No. 14 of 1945 or (2) that the record of the deposition of Gurbachan Singh at Trial No 15 of 1948 was read out to Gurbachan Singh at Trial No. 14 of 1948 and he was merely asked if the statements made therein were true.

Now Section 353, Code of Criminal Procedure provides that all evidence in enquiries and trials should except as otherwise expressly, provided, be taken in the presence of the accused.

After discussing the provisions about the exception to this rule it was observed:

Subject to the exceptions, enumerated above, the rule enacted in Section 353 is imperative that all evidence in any inquiry or trial shall be taken in the presence of the accused. That being so it is not sufficient under the section to read out to a witness his previous deposition in a former case and ask him if the statements made therein are true nor is it permissible to consider at all the evidence given in one case for the purpose of reaching conclusions in the other case. The two cases should be tried independently and determined on evidence re corded in each case.

In a case u/s 488 Code of Criminal Procedure (1898), the evidence has to be recorded in the presence of the husband or father. The same principle as stated in Ram Singh''s case (supra) will apply here also. Such like procedures adopted in conducting solemn proceeding of recording of evidence by applying short-cut methods by the Magistrates for the sake of convenience or to save their time and botheration presents a very sad commentary on their working in Courts. By acting in this manner, they show very scanty regard to the substantive law or the well established Principles and make a farce of the trial. Such trials and proceedings which are conducted in contravention of the procedure land to very serious prejudices to the parties against whom such evidence is utilised. Any order or judgment passed on such evidence provided in the carbon copies of the statements recorded in another case vitiates the proceedings, as it amounts to an illegality, because a witness has to be examined-in chief and cross-examined in the case in the presence of the parties. When such mode of putting the recorded evidence" of one in the other is resorted to there is no examination of the witnesses, at all and the Defendant can say that he did not have the op ortunity to cross-examine that witness whose testimony recorded in another case in which he was not a party has been put on the file of his case. I have my doubts, in my mind, if such a thing can be done even with the consent of the parties or their counsel.

this Court in exercise of its inherent powers u/s 482, Code of Criminal Procedure (1973) has the authority to set right such like illegality which amounts to flagrant violation and misuse of the process of law. The order of the learned Magistrate dated 18th February, 1974 and the consequent order of revision passed by the learned Additional Sessions Judge because of this illegality cannot be upheld and are quashed. The proceedings shall go back now to the same Court which decided the case earlier to re-examine Niranjan Singh (P.W. 6) in a regular manner and readied the case on merits. The parties, through their counsel, are directed to appear in the Court of Judicial Magistrate is Class, Ludhiana, on 25th October, 1976.