Nisar Ahmad vs Emperor

Harries, C.J.—This is a petition for revision of an order of the Sessions Judge of Bhagalpur upholding a conviction of the-petitioner by a Magistrate of the First Class, of an offence u/s 14(a), Dangerous-Drugs Act. The petitioner was convicted under that Section and sentenced to two years'' rigorous imprisonment. The facts of the case are straightforward and simple. The police had received certain information and consequently a number of police officers obtained the assistance of one Bhaglu Ram to approach the petitioner with a view to purchasing from him cocaine. Bhaglu Ram was given two marked rupees, and he and another person Baiju Ram went to the petitioner''s house and purchased from him a phial of white powder for Rs. 2 which they handed over to the petitioner. The police who were keeping watch came up, arrested the petitioner, and upon searching, his person found the marked rupees. The contents of the phial were analyzed, and it was found that it contained cocaine. No. argument has been addressed to us upon the findings of fact; but it has been strenuously urged that during the course of the proceedings before the trial Magistrate a grave illegality was committed which renders the conviction illegal.

After a number of prosecution witnesses had been examined, the Magistrate framed a charge and to that charge the present petitioner pleaded not guilty. He was then asked by the Magistrate whether he desired to cross-examine the witnesses, and his answer was in the negative. He however stated that he would call defence witnesses, and the case was adjourned to another date. Upon that date the defence witnesses did not put in appearance and later the petitioner stated that he would call no evidence. At that hearing some other witnesses were also examined by the Court, and the petitioner stated with respect to these witnesses also that he did not desire to exercise his right of cross-examination. The procedure to be followed by a Magistrate in relation to cross-examination is set out in Section 256, Cr. P.C., which is in these terms:

If the accused refuses to plead, or does not plead or claims to be tried, he shall be required to state at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of ''the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged....

In the present case the Magistrate, purporting to act under this Section, asked the petitioner immediately after the charge was framed whether he desired to cross-examine the witnesses. This the Magistrate was entitled to do in a proper case; but it is to be observed that if it is done immediately after the charge is framed, the Magistrate must record his reasons for asking the accused forthwith. In ordinary cases the question should be asked at the commencement of the next hearing; but Section 256, Criminal P.C., undoubtedly entitles the trying Magistrate to ask the question immediately after the charge is framed provided the Magistrate gives his reasons for so doing. In the present case the Magistrate called upon the petitioner forthwith to say whether he desired to have any of the prosecution witnesses cross-examined; but unfortunately the Magistrate has not recorded his reasons for so doing. It has been argued that this failure by the Magistrate to record his reasons is an illegality which vitiates the whole of the proceedings thereafter. Had the Magistrate failed to ask the petitioner whether he wished to cross-examine the prosecution witnesses, such would have been a very grave matter. However in the present case the petitioner was asked whether he wanted to cross-examine any witness and further the petitioner made it clear that he did not wish to do so. The most that can be: said in this case is that the Magistrate failed to comply strictly with the terms of the Section in that he did not record his reasons for asking the petitioner forthwith whether he wanted to cross-examine the witnesses or not.

I am perfectly satisfied that in a case such as the present one it is essential in the interests of justice that there should be as little delay as possible, and this is pre-eminently a case where an accused person should be asked immediately after the charge whether he desires to cross-examine or not. Further from the subsequent conduct of the petitioner, I am satisfied that he understood the position though he was not represented by counsel. He appears to have preferred to call evidence on his own behalf, and even when he failed to produce such evidence he showed no immediate desire to cross-examine any witnesses. It was only at the very last stage that an application was made that the prosecution witnesses should be recalled for the purposes of cross-examination. In my view the petitioner has not been prejudiced in this case. He well knew what he was being asked, and he, knowing the possible consequences, declined to have the witnesses recalled for cross-examination. Unless therefore this failure by the Magistrate to record his reasons amounts to an illegality which must in every case vitiate a trial, I am not prepared to hold that the failure in this case has in any way affected the trial. It may be that the failure to ask the accused whether he desired to cross-examine might be an incurable illegality.

As I have stated, the most that can be said in this case is that though the Magistrate was entitled to ask the accused forthwith, he failed to record his reasons for so doing. Such a failure to my mind is more in the nature of an irregularity and is curable where no injustice has been caused. In the present case I am abundantly satisfied that the petitioner has not been prejudiced in any way and that being so, there is no force in the present contention. The facts of the case make it abundantly clear that the petitioner did sell this cocaine in circumstances which amount to a crime u/s 14(a), Dangerous Drugs Act.

It has also been urged before the Court that the sentence in this case is excessive. In my view this crime is a most serious one and is far too prevalent in Northern India. It is a crime easy to commit and it is a crime which is frequently followed by most terrible consequences. Vendors of these dangerous drugs are often the cause of ruination of many innocent people. The time has come when deterrent sentences must be imposed to stamp out crimes such as these and that being so, I am unable to hold that the sentence is excessive. The result therefore is that I would dismiss this application.

Yerma J.

I agree. On the facts of the case there is no doubt that the accused was caught red-handed while trying to sell cocaine on the date and at the time mentioned by the prosecution. The only point that needs consideration is the point of law urged by Mr. Azizullah, the point of law being that on 21st March 1938, when three prosecution witnesses were examined and charge was framed, the learned Magistrate proceeded to put the question to the accused whether he wanted to cross-examine prosecution witnesses. Mr. Azizullah on the strength of the wording of Section 256, Criminal P.C., urges that although he may be justified in putting the question immediately after the charges were framed, he should give reasons in writing for doing the same or the trial is vitiated. Dealing with this case in our revisional jurisdiction, we have first of all to see whether this omission to record reasons amounts to an illegality, and if it is not an illegality but a mere irregularity, whether the accused has been prejudiced in his trial in the case.

Now, on that date I find that the accused had an opportunity of expressing his views before the Magistrate (Babu N.N. Das Gupta). First, in answer to the charge which was explained to him, he pleaded not guilty, and he said that he declined to cross-examine prosecution witnesses but wanted to adduce defence. This statement of his was recorded by the Magistrate in the English language; but on the same date there was the examination of the accused in Hindustani, which has been taken down in Kaithi script. His examination evidently was u/s 342, Criminal P.C.

The first question was whether he sold the cocaine or not to Bhaglu Ram. Thee answer was in the negative. The second'' question was as to why he was implicated'' in this case. He said it was due to an altercation with Bhaglu about eight days-before the occurrence. Then the last, two questions are important. "Will you cross-examine witnesses?" The answer is "No." The next question is "Will you examine defence witnesses?" He said "Yes" and then and there named Hasim Mia, Abdul'' Hannan and Ahmad Mia, as defence witnesses, and he signed this statement of his in Kaithi. So the argument that the petitioner could not understand the question that was put to him cannot be raised in? the face of the document that I have referred to. So far as the question of illegality of the procedure is concerned, there is no doubt that the Magistrate is entitled to put the question either immediately after the charge is framed or on the next date after the charge is framed: but if he puts the question on the date the charge is framed, he is to give his reasons in writing. His failure to give his reasons in writing, to my mind, does not amount to anything more than an irregularity.

At best it is a kind of omission in procedure contemplated by Section 537, Criminal P.C. Looking at the conduct of the accused, he does not seem to'' have been keen about cross-examining witnesses or coming forward with his own version. It cannot be said that he was in any way prejudiced, because it appears that although he cited defence witnesses they did not appear. Then he ultimately gave them up. Then when some more witnesses were examined by the Court, he refused to cross-examine them. So evidently he never intended by his own efforts to demolish the prosecution case. No prejudice has arisen, in this case and this is not a matter in which I should in the exercise of our revisional jurisdiction interfere with the conviction or the sentence.