HARI MANU GAUDO Vs. HARISHCHANDRA SHANKAR GAUDO

JUDGEMENT

(1.) This is a reference made by the learned Sessions Judge under Section 438(1) of the Code of Criminal Procedure. The report by him is that this case be remanded to any Magistrate other than the trial Magistrate and the applicant be given an opportunity to cross-examine the witnesses for the prosecution.

(2.) The material facts are that the respondent filed a complaint alleging that the applicant had insulted and caused him hurt on 3rd July, 1967, at about 10.00 a.m. The learned Magistrate tried the case summarily and after recording evidence adduced on behalf of the applicant and the respondent, convicted the applicant for the offences under Section 504 Indian Penal Code and directed him to pay a fine of Rs. 50/-. He also convicted him under Section 323 Indian Penal Code and required him to pay fine of Rs. 50/-. The total fine imposed was Rs. 100/-. The learned Magistrate passed an order that in case of default of payment of this fine the applicant had ' to undergo S. I. for one month. The applicant felt aggrieved by this decision of the learned Magistrate and approached the learned Sessions Judge in revision. The learned Sessions Judge accepted the contention on behalf of the applicant that his advocate was not permitted to cross-examine the witnesses and therefore he has been prejudiced in his defence. As will appear from the reference of the learned Sessions Judge there was some altercation between Mr. G.B. Usgaonkar, learned Counsel for the applicant appearing in the Magistrate's Court, and because of that altercation Mr. Usgaonkar withdrew his vakalatnama. According to the learned Sessions Judge, it was necessary for the learned Magistrate to have given time to the applicant to engage another lawyer and as he did not do so therefore the procedure followed by him was not proper. He then came to the conclusion that the applicant be given an opportunity to cross-examine the prosecution witnesses who were heard but could not be cross-examined by Mr. Usgaonkar, appearing for the applicant. It is in these circumstances that reference is made by the learned Sessions Judge with the recommendation mentioned above.

(3.) Mr. Usgaonkar, learned Counsel for the applicant, contends that there was some altercation between him and the learned Magistrate and as he withdrew therefore the learned Magistrate should have permitted the accused to engage another lawyer and since he did not do so therefore prejudice is caused to the applicant. It may be stated that the case was triable summarily. The learned Magistrate has recorded long notes of evidence which he was not bound to do so under Section 263 of the Code of Criminal Procedure. Mr. Tamba, learned Government Pleader for the State, submits that no prejudice was caused to the applicant and that the withdrawal from appearance was not a suitable ground for adjourning the proceedings. I have gone through the record and I find that the complainant Horichondra Xencora Gaudo and his two witnesses Gones Gaudo and Data Govinda Gaudo were examined on 12th December, 1967 The complainant and Data Govinda Gaudo were cross-examined but as regards witness Gones Gaudo there is a note of the learned Magistrate that the cross-examination was not carried out. It may be stated that on 12th December, 1967, Mr. Usgaonkar did not make any application for withdrawal from the case. It was for the first time on 15th January, 1968, that he made an application which reads as under :-