HARI SAHU Vs. MAKHI DEI

JUDGEMENT

(1.) THIS is a revision against the judgement of the Sub -divisional Magistrate, Bhadrak, convicting the two petitioners under Section 323, I.P.C. and Section 24 of the Cattle Trespass Act and sentencing them to pay various amounts of line. The trial was held summarily and the two following important questions of law were urged by Mr. Dhal in support of this revision petition :

(2.) SO far as the recording of evidence is concerned the Magistrate has recorded in full almost verbatim all the answers given by the prosecution witnesses in cross - examination though his recording of the examination -in -chief is somewhat brief and contains only the substance of the depositions of the witnesses. But no prejudice has been shown to have been caused by the adoption of this procedure and so long as the record of the Cross -examination is full mere tan be no question of any prejudice. In Mir Gulam Hussain v. SK. Hapan, Criminal Revn. No. 385 of 1960 : (1965) (1) Cri LJ 408 (Orissa) disposed of yesterday I have discussed this point and have also distinguished the Bombay case, reported in Krishna Nayar Rani Nayar v. State, AIR 1960 Bombay 107. In my opinion, therefore, there has been substantial compliance with the provisions of Section 264, Criminal Procedure Codede.

(3.) I may in this connection refer to the judgement of the Supreme Court in Surendra Singh v. State of Uttar Pradesh, AIR 1954 SC 194 which will be of some assistance in discussing this question of law. Assuming that the language of Section. 265(1), Criminal Procedure Code requires that the Presiding Officer must write judgements in summary trials in his own hand the question ultimately will be whether it is an irregularity curable under Section 537, Criminal Procedure Code or an illegality which vitiates the trial itself. Clause (a) of Section 537 Criminal Procedure Code expressly says that any error omission or irregularity in a judgement will not by itself be a ground for reversing the sentence unless prejudice is proved to have been caused. Their Lordships in the aforesaid case held that so long as the judgement is validly delivered even such an omission as failure on the part of the Presiding Officer to sign the judgement and authenticate it would be a mere irregularity, and it will not suffice to vitiate the entire proceeding. Here the Magistrate got the judgement typewritten, presumably by some member of his staff and he has also given an endorsement to the effect that the judgement was pronounced in open court on the 4th April 1962. He has also given a further certificate to the effect that it was dictated and corrected by him.Mr. Dhal did not challenge the correctness of the aforesaid endorsement or certificate nor could he show that any prejudice was caused to the petitioner by the omission of the Magistrate to write the judgement in his own hand. Following the principles laid down in the aforesaid Supreme Court case I must hold that the judgement was validly delivered in open court and hence the mere failure on the part of the Magistrate to write it out in his own hand and his action in getting it typewritten at his dictation, will at best he mere irregularity curable under Section 537, Criminal Procedure Code