Ramsakal Rai and Others vs King-Emperor

Bucknill, J.—This was an application in criminal revisional jurisdiction made by some persons who were convicted by the Deputy Magistrate of Arrah on 16th of February last of offences punishable under the provision of Sections 143 and 379 coupled with Section 34, I.P.C. The applicants appear to have been sentenced each to pay a fine of Rs. 50 under the provisions of Section 379, I.P.C., and in default of payment thereof to undergo rigorous imprisonment for two months; no separate sentence was passed upon them in connexion with the provisions of Section 143, I.P.C.

The only ground which has been put forward upon which it is urged that this Court should interfere, is because it is suggested that there has been a wrongful exercise of jurisdiction by the Deputy Magistrate in connexion with the, procedure. It is unnecessary to go into the facts relating to the offences with which these men were charged further than to say that the affair related to blocking up of a water course. In the course of the trial, which proceeded in the usual manner, a certain Sub Inspector of Police was examined as a witness for the prosecution; he was cross-examined at considerable length by the defence. Now, it would seem that the defence wished to call this Sub-Inspector either as a defence witness or for the purpose of what was in effect further cross-examination; and on 28th of January last it seems that the Magistrate at that time was ready to agree that this should be done. At a later stage, however, namely, on 9th of February, he altered his view. The note in the order sheet of 28th of January last, so far as it is here material, reads: "The defence prays that Sub-Inspector of Sahar who had been summoned has not turned up to-day and his evidence is necessary. Summon him afresh." The Magistrate''s note on 9th of February last reads: "The defence filed a petition that the Sub-Inspector is not forth-coming to-day and that his examination is necessary as a defence witness. It appears that he was examined as prosecution witness 5 and he was cross-examined at length by the defence side. I have already granted two adjournments for this, and I cannot wait any longer for time now."

Now it is suggested that this action taken by the Deputy Magistrate is illegal. The Deputy Magistrate, in his explanation which appears to be dated about 28th of May last, says:

The Sub-Inspector in question was examined as prosecution witness 5 on 3-1-25.

Charge was framed against the accused on 14-1-25, and the accused persons had ample opportunity of cross-examining the Sub-Inspector before charge and after the charge.

The Sub-Inspector was cross-examined at great length by the defence side on 15-1-25, and then discharged.

Technically speaking, the Sub-Inspector could not, have been summoned as a defence witness, under such circumstances. He could have only been summoned u/s 257, Criminal P.C., for further cross-examination, on the discretion of the Court, if the Court was satisfied that it was necessary. But no such necessity appears to have been mentioned in the petitions of the accused, dated 28-1-25 (vide flag A) and 9-2.25 (vide flag B). Even then I had granted two adjournments for this. But the Sub-Inspector was not available. So I did not think it proper to drag on the case any more, thereby causing delay in the administration of justice."

Now the defence applied to the Sessions Judge of Shahabad upon this point and the learned Sessions Judge dealt with the matter on 17th of March last. It is perhaps useful to refer to what the learned Sessions Judge has said in his judgment. It reads: "On behalf of the petitioners it has been urged that once the Magistrate had directed that the Police Sub-Inspector should be re-called for cross-examination after the accused had entered on their defence, he was bound to insist on his appearance. The proposition so stated is not without force. But in this case the petitioner had had an opportunity of cross-examining the Sub-Inspector before the framing of the charge and had cross-examined him at some length after the charge had been framed. The attendance of the Sub-Inspector therefore was not to be compelled unless it was necessary for the purpose of justice. It appears that his non-attendance on the first date, 28th January 1925, was due to the fact that he never received the summons till 31-1-25 (the application for his attendance made by the accused was filed so late as 23rd January 1925) and that it was due on the second date, 9th February 1925, to his inability to attend the Court owing to an accident. It is now said that the petitioners wished to question this officer for the purpose of finding out whether he bad observed any sign of the placing of the karah in, or of the removal of the karah from, the pyne, a question of importance which they had omitted when the officer was cross-examined. I have consulted the record of the case, and am doubtful whether the Sub-Inspector could have afforded useful assistance to the Court on this point. There is no doubt but that the pyne was blocked and that of the materials used for this purpose bamboos and paddy bundles formed a part; there is corroboration here of the prosecution story. I am not satisfied that this is a fit case for interference."

I entirely agree with what the learned Sessions Judge has written. The question of the sauce-pan appears to me to be one of very slight importance. As the learned Judge has pointed out, the principal matter was the blocking up of the pyne with various materials and what assistance could seriously have been afforded to the defence by the police officer''s remarks upon a sauce-pan it is difficult to gather. Did I in the least think that the applicants had been in any way prejudiced by what has taken place I should have no hesitation in interfering, but as it has in no way been shown or proved to me that there has been the least prejudice against the applicants I do not think that it is proper that I should interfere. It may be said, as has been pointed out by the learned Sessions Judge, that as a general proposition it should be considered that once a Magistrate has given orders that a certain witness should be called he should take such steps as may be necessary and possible to enforce his attendance. I however, am not prepared to assent to the suggestion that in no case it is possible for the Magistrate, if he comes to the conclusion that the attendance of the witness is not really necessary, to dispense with that person''s attendance. In this case the circumstances were such that I think he was not only competent to dispense with this Sub-Inspector''s further attendance, but that he was right in so doing.

The application, therefore, will be dismissed.