RAM SANEHI Vs. STATE

JUDGEMENT

(1.) Gajam and Ram Sanehi were convicted Under Sec. 379 IPC and sentenced to undergo six months rigorous imprisonment each by a Bench of Magistrates, which was presided over by Shri Nagehswari Prasad and Shri Prem Chand Maheshwari. Both the Applicants went up in appeal before the Sessions fudge, which was dismissed. Hence this revision by Ram Sanehi alone.

(2.) Learned counsel for the Applicant urges that on seven dates of hearing, that is, on 15 -1 -1964, 3 -3 -1964, 8 -4 -1964, 15 -4 -1964, 22 -4 -1964, 24 -4 -1964 and 29 -4 -1964 only one Magistrate out of the two was present and he alone had heard the case and therefore, the proceedings have vitiated. This point was not taken before the court below. But in the interest of justice I thought it necessary to call for a report from the Magistrates concerned regarding the above allegations. The Magistrates have now submitted a report dated 18 -5 -1966 strongly repudiating the allegations of the Applicant. It has been stated by the Magistrates that both of them were present on all the aforesaid seven dates and had jointly heard the case. It was on 15 -1 -1954 that the statement of P.W. Sita Ram was written by Shri Nageshwari Prasad, Magistrate and he alone had signed the same, though the other Magistrate Shri Prem Chand Maheshwari was also present. Similar was the position on 3 -3 -1964 and 22 -4 -1964. From the report of the Magistrates, it is abundantly clear that the depositions were signed on the above dates by the Magistrate actually recording the evidence in the presence of the other Magistrate. The recording Magistrate has put his signatures on various depositions written by him, though the other Magistrate present has not subscribed his signatures or initials thereto. It was certainly desirable that both the Magistrates present should have signed the memorandum of evidence recorded by one of them; yet the omission on the part of the other Magistrate in putting his signatures on the said depositions cannot be considered a violation of the provisions of Sub -section (2) of Sec. 355 Code of Criminal Procedure which requires the Magistrate to write and sign memorandum of evidence with his own hand. Obviously the actual recording of evidence cannot simultaneously be made by both the Magistrates constituting the Bench. What Sub -section (2) really requires is that the Magistrate actually writing the memorandum should necessarily sign the same. The other Magistrate is not Compulsorily required to put his signature thereto. The use of the definite article 'the' before the word 'Magistrate' in Sub -section (2) is significant. It evidently refers to the Magistrate writing the memorandum with his own hand. In this view of the matter the omission on the part of the Magistrate, who had not actually made the memorandum of evidence with his own hand, to subscribe his signature thereto would not vitiate the proceedings. In this connection reference may be made to the following cases wherein it was held that the failure of the Magistrate merely to sign the memorandum of evidence cannot be regarded as sufficient by itself to vitiate the trial or conviction. The irregularity, if any, would be curable Under Sec. 537 Code of Criminal Procedure.

(3.) The revision has no force and is accordingly dismissed. The Applicant is on bail. His bail bonds are cancelled. He must immediately surrender to serve out the balance of his sentence.