EMPEROR Vs. PRANSHANKAR SHAMBHURAM RAVAL

JUDGEMENT

(1.) In this case a prosecution was instituted against the two accused under Rule 81 (4), Defence of India Rules, 1939, before Khan Saheb S.K. Desai, who was then City Magistrate, First Class, Ahmedabad. After he had recorded some evidence, further hearing of the case was postponed, as the prosecution wanted to consider the question of its withdrawal. Eventually it was decided that the case should be proceeded with. In the meantime Khan Saheb S.K. Desai had retired, and the case came up for hearing before Mr. R.K. Desai. The accused then made a request that all the witnesses previously examined should be recalled and reheard, and this request was granted. A question then arose Page 1 of 4 Emperor vs. Pranshankar Shambhuram Raval and Anr. (31.03.1949 - BOMHC) whether the evidence of these witnesses recorded before Khan Saheb S.K. Desai was or was not to be regarded as evidence in the case. The Magistrate heard the advocates on both sides and then passed an order in the following terms on 29th January 1948. "I decide that the previous evidence stands and is not wiped out." The accused applied in revision to the Sessions Judge, Ahmedabad. The Additional Sessions Judge, who heard the revision application, took the view that the evidence, which was recorded before Khan Saheb S.K. Desai, could not be treated as substantive evidence in the case. He has, therefore, made a reference to this Court recommending that the above order passed by the Magistrate should be set aside.

(2.) Sub-section (1) of Section 350, Criminal P. C., states as follows :

(3.) As therefore the whole evidence of a witness who is re-summoned is to be recorded again, his previous deposition before another Magistrate cannot be treated as substantive evidence in the case, although it may be used for contradicting any fresh evidence given by him under Section 145, Evidence Act. The object with which the right has been given to the accused to demand that the witnesses previously examined should be re-called and reheard is that he may, if he considers that he would otherwise be prejudiced, ask the Magistrate to form his own opinion about the credibility of those witnesses, whom he regards as material, and to base his decision on their evidence as recorded before him. As observed by Burn J. in Mudda Veerappa v. Emperor, A. I. R. (22) 1935 Mad. 318 at p. 319 : (36 Cr. L. J. 1265) :