PUBLIC PROSECUTOR A P Vs. MOHD MUNNAWAR HUSSAIN

JUDGEMENT

(1.) In Sessions Case No. 71 of 1964 the learned First Assistant Sessions Judge, Hyderabad, convicted the accused of offences under section 52 of the 'Indian Post Office Act read with section 34, Indian Penal Code or in the alternative under section 409 read with section 34, Indian Penal Code and awarded them sentences. The two accused filed appeals, Criminal Appeals Nos. 22 and 23 of 1965, in the Sessions Court, Hyderabad. The learned Additional Sessions Judge (cum-Chief City Magistrate) heard these-two appeals together and held that the judgment of the lower Court was vitiated by material defect of failure to examine two important witnesses. He, therefore, disposed of the appeals observing as follows :

(2.) The only contention made by the learned Public Prosecutor is that the course adopted by the learned Additional Sessions Judge, was illegal as it was not in conformity with the provisions of the Code of Criminal Procedure and that the proper course which the learned Additional Sessions Judge ought to have adopted was as provided in section 428 (1), Criminal Procedure Code. The relevant portion of section 423 of Criminal Procedure Code runs as follows :

(3.) It is obvious that the course adopted by the learned Additional Sessions Judge is not warranted by section 423, Criminal Procedure Code or any 'other provision of the Code. It was open to him to acquit the accused under section 423 (1) (b), Criminal Procedure Code or to keep the appeals pending on the ground that he considered additional evidence to be necessary and proceed as mentioned in section 428 (1), Criminal Procedure Code. The contention of the learned Public Prosecutor is correct and I also agree with him. It is, ' therefore, necessary to set aside the judgment of the learned Additional Sessions Judge and direct him to restore the appeals to his file and proceed under section 428 (1), Criminal Procedure Code. The learned Additional Sessions Judge has recorded the reasons to show the need for examining the two witnesses. The learned Public Prosecutor and the learned Advocate for the accused agree that it is desirable that the learned Additional Sessions Judge himself recorded the additional evidence which he considers necessary instead of directing it to be recorded by the learned First Assistant Sessions Judge. I consider that this course is desirable in the circumstances of this case.