CHHOTU ALIAS PARIA CHHAGAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Mr. Sompura then contended that the learned Sessions Judge has not complied with the provisions contained in sec. 356(2) and 361 of the Criminal Procedure Code. His grievance is that the evidence of Dr. Thomas Ex. 22 has been recorded only in English; the accused knew only Gujarati and since it does not appear about the translation of his evidence having been explained to him in Gujarati the trial according to him is vitiated in law. That according to him would be a breach of clause (2) of sec. 356 of the Criminal Procedure Code. The other objection taken by him is that as contemplated in clause (1) of sec. 361 of the Criminal Procedure Code whenever any evidence is given in a language not understood by the accused and he is present in person it shall be interpreted to him in open Court in a language understood by him. That having not been done the learned Sessions Judge had committed an error of law and such an error is not curable as sec. 537 of Criminal Procedure Code. It should therefore be held that the trial is vitiated.

(2.) If we turn to clause (2) of sec. 356 of the Criminal Procedure Code we find that when the evidence of such witness is given in English the Magistrate or Sessions Judge may take it down in that language with his own hand or cause it to be taken down in writing in that language from his dictation in open Court and unless the accused is familiar with English or the language of the Court is English an authenticated translation of such evidence in the language of the Court shall form part of the record. It is true that evidence has been recorded in English. The language of the Court is Gujarati. The accused did not know English. It is not said that any illegality is committed by the Court with regard to the taking down of the evidence of Dr. Thomas in English. What is said is that no authenticated translation of such evidence has been on record. It does appear that there is no authenticated translation of such evidence in the language of the Court. But that can hardly be said to be such an illegality, which is not curable under sec. 537 of the Criminal Procedure Code. It is merely an irregularity if at all and on that basis there can arise no question of any prejudice to the accused. I shall presently show that the question of prejudice to the accused has not arisen at all in the circumstances of the case.

(3.) Turning then to the other contention raised by Mr. Sompura if we turn to clause (1) of sec. 361 what is required is that if any evidence is given in a language not understood by the accused and he is present in person it shall be interpreted to him in open Court in a language understood by him. Clause (2) provides that if he appears by pleader and the evidence is given in a language other that the language of the Court and not understood by the pleader it shall be interpreted to such pleader in that language. His argument was two-fold. One is that the accused cannot be said to have been represented by a pleader in the sense that the pleader who appeared for him was appointed by the Court and not a pleader engaged by him. According to him he should therefore be treated as an accused present in person and not represented by a lawyer and that way in case the deposition of Dr. Thomas was not interpreted to him in open Court in Gujarati prejudice can easily be said to have been caused to him. He would not in those circumstances be able to give suitable instructions to the pleader appearing for him for the purpose of cross-examination. In this connection he sought support to such a proposition from a decision in the case of Mathai Thommen V. State A.I.R. 1959 Kerala 241. The observations relied upon by him run thus:-