Muthiah Pillai and Another vs Emperor

Walsh, J.—Six persons were accused in C.C. No. 1451 of 1930 on the file of the 2nd Class Magistrate of Madura Town of whom four

were convicted u/s 325, I.P.C. On appeal two of these were acquitted and the conviction was confirmed as regards accused 1 and 2. This

revision petition has been filed by them. There are only two really arguable points in this petition. The first is that the failure of the Court to ask the

accused whether they wished to cross-examine the prosecution witnesses after the framing of the charge vitiates the whole proceedings. The

second is that the evidence of one of the witnesses in a previous trial, (the present trial being a de novo one), who has since died, is inadmissible.

The learned appellate Magistrate has dealt with the first point and stated that the appellants'' advocate

does not seem to have applied for the re-cross-examination of the prosecution witnesses. Evidently the appellants did not want to re-cross-

examine.

He further held that the omission to ask the appellants was a mere irregularity and the conviction is not thereby vitiated. He quotes in support of

the latter position a ruling which neither the appellants'' counsel before me nor the Public Prosecutor has been able to identify. The counsel for the

appellants relies on the rulings in In re Raju Achari AIR 1927 Mad. 78, Chagpal Narainji v. Emperor AIR 1929 Sind 151, and AIR 1930 255

(Nagpur) . The contention of the learned Public Prosecutor is that Section 256 only applies where the charge is framed before the prosecution

evidence has been completely recorded. He quotes Gangadhar v. Bhanji Sao AIR 1925 Nag. 147. This is a decision, by the Judicial

Commissioner of Nagpur and it is in conflict with the ruling of the same Court quoted above in AIR 1930 255 (Nagpur) . I am unable to agree

with the contention that Section 256 only applies where the charge is framed before all the witnesses for the prosecution are examined. In this

connexion I might refer to the Full Bench case in In re Karuthaswami Servai AIR 1930 Mad. 331, in which I took part. In that case Curgenven, J.,

has considered Sections 256 and 257 and I entirely agreed with his view. The words in Section 257 ""after he has entered upon his defence"" in my

opinion rule out the contention that Section 256 has no application if the charge is framed before the prosecution evidence is completed and that

only Section 257 is then applicable. As to the effect of the irregular procedure, the cases quoted above for the appellants hold that it vitiates the

trial. On the other side is quoted Rameshar Lal Vs. Rajdhari Lal . In view of the decisions of the Madras High Court I am unable to follow this

ruling. I must therefore hold that the trial has been vitiated by the failure to ask the accused whether they wished to cross-examine the prosecution

witnesses.

Although this renders consideration of the second point unnecessary for purposes of this petition, I think it is better to express my opinion on it

as it may arise again when the case is remanded for retrial. Prima facia the evidence of a witness who has been examined and whom there was an

opportunity to cross-examine is admissible u/s 33, Evidence Act, if he has since died. The following cases were quoted for the appellants. Sahib

Din v. Emperor AIR 1922 Lah. 49; Emperor Vs. C.A. Mathews, , Umar Hajee v, Emperor AIR 1923 Mad. 32, and Narsingh Das Vs. Gokul

Prasad and Others, . With regard to Sahib Din v. Emperor AIR 1922 Lah. 49 the witness was not dead and the observation relied on was an

obiter dictum. Umar Hajee v. Emperor AIR 1923 Mad. 32 was also a case where the witness was not dead. With regard to Narsingh Das Vs.

Gokul Prasad and Others, the witness died before the first cross-examination was completed. Obviously there was not the opportunity to cross-

examine contemplated in Section 33, Evidence Act. The two others are Calcutta cases and they proceed on the principle that in a warrant case

until the stage provided for in Section 256 is reached the accused has no right to cross-examine, and consequently the evidence of a witness given

before framing of the charge is not admissible u/s 33, Evidence Act. That ruling is entirely opposed to the ruling in In re Muthiah Chetty AIR 1924

Mad. 735 of this Court where Wallace, J., held that no Magistrate or Court can refuse to allow an accused to cross-examine prosecution

witnesses before the charge is framed, and that such a procedure is most irregular and in contravention of law. With respect I entirely agree with

this view. I therefore hold that the evidence of this witness, who had died and whom the accused had an opportunity to cross-examine in the

previous trial is admissible. I might point out that it has always been held that the evidence of a witness given in a preliminary inquiry whom the

accused had an opportunity to cross-examine is admissible in Sessions if that witness is dead, and the argument that the accused has lost the

opportunity of further cross-examining him in Sessions does not affect its admissibility however much it may affect the value to be put upon it.

The conviction must be set aside. It cannot be said that the appellants, who were only sentenced to imprisonment till the rising of the Court, have

undergone any punishment hitherto. The offence is a serious one and the case is therefore remanded for retrial by some other Magistrate.