STATE Vs. SURAJ BALI

JUDGEMENT

(1.) THIS criminal revision arises out of the following fact's:

(2.) OPPOSITE parties Suraj Bali, Misri Lal Rama Nand. Sagdu, Shankar and Moti Lal were prosecuted under Sections 147. 324/149. 323/149 and 342 of the Indian Penal Code, before the Judicial Magistrate, Mohanlalganj. Lucknow. He recorded the statements of various witnesses including that of one Ram Chandra as P. W, 2. Thereafter he convicted and sentenced the opposite parties to undergo various terms of imprisonment on the said counts; They appealed and the appellate Court, being of the view that the evidence indicated the alleged commission of an offence under Section 387 of the Indian Penal. Code which was exclusively triable by a court of Session, set aside the convictions and sentences and remanded" the case to the learned Magistrate with a direction that he should commit them to the court pf session on a proper charge. On the receipt ? of the record after remand, the learned Magistrate passed a commitment order which. inter alia, contains the following: Accused persons appeared in Court. and each namely the prosecution and the accused were informed that they may re examine or re-call any witness. No fresh witness was examined by the prosecution nor any was summoned by the defence for cross-examination. The. accused persons. were examined again. On going through the evidence on record and after perusing the case diary I am of opinion that a prima facie charge Under Section 387 I. P. C. is made out against all the accused. In alternative charges under Sections 147 I, P. C. 324/149 I. P. C. 323/149 I. P. C. and 342 I. P. C. are also framed. I therefore. commit accused. . . to the court of Sessions to stand their trial on the charges mentioned above.

(3.) IT transpires that Ram Chandra. (P. W. 2) (who had been examined by the Magistrate) died before he could be examined at the trial before the Assistant Sessions Judge, Lucknow. The Public Prosecutor presented an application to examine Faqirey, father of the said Ram Chandra. to prove the latter's death to enable the prosecution to apply for the transference of the deposition of Ram Chandra from the record of the court of the Magistrate on to the record of the Sessions trial as evidence under Section 33, Evidence Act. The learned Assistant Sessions Judge rejected this application on the following ground:"the record does not show that the prosecution and the defence had agreed that the evidence that already existed on the record (prior to the filing. of appeal) should be read for the purpose of. committal proceedings. In the absence of any such undertaking or agreement it is not open. in my judgment to the prosecution to rely upon the statement of any one of the witnesses already examined before the committing Magistrate. I, therefore. think that. the statement of Ram Chandra without the consent of the defence could not have been brought on the record and as such cannot be tendered in evidence Under Section 33 of the Indian Evidence Act. " It is in these circumstances that the State has come up in revision to this court.