Gulai Jha and Others vs Emperor

Jwala Prasad, J.—This is an application (1) for transfer of the case from the file of the Magistrate, (2) for giving an opportunity to the petitioner to cross examine the Court witness named Ramnihora Singh and (3) for giving the petitioner permission to rebut the new evidence called by the Court.

No sufficient ground for transfer for the case has been made out and hence this part of the prayer must be rejected.

It seems, however, that sufficient opportunity was not given to the petitioner to cross-examine the said witness. After the evidence on both sides and the arguments closed, the case was adjourned to 12th October, 1927, for judgment. It was again adjourned to 17th October, and then to 19th October. On the 19th October, the Magistrate passed an order for summoning three persons as Court witnesses for the next date, the 20th October. Ramnihora Singh being one of them. On the 20th October, the examination of this witness began at 4 p.m. and continued up to 6-30 p.m. when the petitioner was asked to cross-examine the witness. He wanted time as his Pleader was not then present. This was refused and the petitioner was called upon to cross-examine the witness himself. He tried to do so, but after Putting some questions to the witness he could not continue his cross examination being a layman and began to quarrel with the witness and put Questions to him which naturally incensed the Magistrate who threatened to punish him for contempt of Court. The result was that the witness was not properly and fully cross-examined by the petitioner.

Now, the Magistrate after several adjournments suddenly made up his mind on the 19th of October that the evidence of three witnesses was necessary, inasmuch as he says that he found certain omissions on material points in the evidence already adduced in the case and parties who were waiting for judgment from the 12th of October were suddently told by the Magistrate that he would examine these fresh witnesses the next day. The petitioner objected to the case being taken up on the 20th October, because his lawyers were not available. Not only that, he commenced the examination of the witness at the fag end of the day, namely, at 4 p.m. and called upon the petitioner to cross examine the witness in question at 6-30 p.m. long after the Court hours prescribed by rules 1 and 2, Vol, I, Criminal, of the High Court''s General Rules and Circular Orders. Rule 1 says: "The Court hours shall ordinarily be from 10-30 a.m. to 4-30 p.m. standard time,'''' and Rule 2 says "Every Sessions Judge and Magistrate shall sit daily and punctually at the hour appointed for the opening of his Court unless prevented by circumstances which are to be recorded in the Court''s diary." The Magistrate says in his explanation that he took up the case so late in the day, because it was the custom of that Court to sit till late. The hours prescribed for the sitting of Courts are not only to suit the convenience of the Courts but also of the parties, and the Court in question had no right to take up any case after 4-30 p.m. without the consent of the parties. The Courts in the mofussil, no doubt, take it as their right and privilege to sit at any time they like regardless of the convenience of the parties concerned. The parties being suitors before them do not boldly object to the prolonging of Court hours or taking up of cases late in the day for fear of incurring the displeasure of the Presiding Officers of the Courts. The Courts should not take advantage of this weakness of the parties, I think the petitioner, when he was called at 6-30 p. m. by the Magistrate to cross-examine the witness in question, was within his right to have the case adjourned, and the Magistrate would have been well-advised if he had acceded to the prayer of the petitioner to enable him to fully and properly cross-examine the witness in question.

I, therefore, direct that full opportunity be given to the petitioner to further cross examine the witness in question and he should also be given an opportunity to adduce evidence in rebuttal as already prayed for.

Learned Counsel on behalf of the petitioner further says that Ramanand Jha nephew of the complainant, should be called as a Court witness I do not think that the Court below can be forced to call that witness on behalf of the Court, if that witness is material, he may be called in rebuttal by the petitioner himself. Then learned Counsel says that the said witness being the nephew of the complainant will be hostile and he would, therefore, like to cross-examine him and hence he should be called as a Court witness. This is not a valid reason for forcing the Court to call him as a Court witness. The petitioner might lay foundation for cross-examining the witness if he proves to be hostile.