INAYAT Vs. REX

JUDGEMENT

(1.) This application in revision is directed against an interlocutory order in a pending criminal case. Ordinarily, this application should have been dismissed on this ground alone. We, however, decided to consider it on merits and to decide the question of law raised by it, because there is an order by the learned Judge, who issued notice upon this application, stating that the question of law raised in this application is of some importance and deserves to be considered by a Bench of two Judges.

(2.) The applicants are on their trial for an offence under Section 5, Explosive Substances Act. During the course of the trial, was tendered in evidence a report from the Inspector of Explosives. It was received in evidence and exhibited without any objection on the part of the defence, the result of which was that the trial proceeded further on the assumption that that document was not required to be formally proved. It seems, that at the time when this document was received in evidence and exhibited, everybody, namely, those responsible for the prosecution, as well as those responsible for the defence, were under a belief that the document did not require formal proof, Section 510, Criminal P. C., lays down that a document, purporting to be a report of a Chemical Examiner, is receivable in evidence. The Chemical Examiner and the Inspector of Explosives is perhaps the same individual, although he holds two different offices. For this reason no objection appears to have been taken to the receipt of the report in evidence. At the time of the arguments learned counsel for the accused, however, contended with vehemence that the report should not be looked into, that it could not be treated as evidence without proof, and that it should be disregarded as a mere scrap of paper.

(3.) The evidence in the case was concluded on 1st August 1949, and 11th August 1949, was fixed as the date for the delivery of the judgment in the case. On 2nd August 1949, the Assistant Government Pleader applied that the Inspector of Explosives be examined under Section 540, Criminal P. C, for the purpose of formally proving his report. The object of this application was, therefore, clearly to meet a technical objection raised by the learned counsel for the accused, and to bring on the record the formal proof of the report of the Inspector of Explosives. There is no doubt that the ends of justice very much required that this lacuna in the evidence should be removed, for it was brought into existence not only on account of a misconception on the part of the prosecution, but also because the prosecution was encouraged in that misconception by the conduct of the defence. The learned Temporary Sessions Judge of Bijnor accepted this application and made the following order: "I am of opinion that the Inspector of Explosives should be summoned and called as a witness under Section 540, Criminal P. C,, to give his evidence In this Court. He will not be allowed to be examined on commission. Assessors and accused be summoned for 24th August 1949, Fix. 24th August 1949." The applicants have come up to this Court in revision against this order, and it is contended on their behalf that the trial was closed when this order was made, and, therefore, the Court had no jurisdiction to summon the Inspector of Explosives as a witness under Section 640, Criminal P. C. at that stage.