STATE Vs. SURAJDEO SINHA

JUDGEMENT

(1.) These two applications have been heard together as the same question arises in both the cases as to whether the deposition of Mr. C. A. Mahadevan, I. A. S., is admissible under Section 33, Evidence Act, Mr. Mahadevan being dead. The deposition of Mr. Mahadevan was recorded on commission at Bombay in the proceedings against the opposite party. Mr. Mahadevan had been seriously ill with cancer of the tongue and was receiving treatment for that disease at Bombay.

(2.) The case against the opposite party was before a Magistrate at Patna, and the order sheet of the Magistrate shows that he had decided to hold an enquiry under Chapter 18, Criminal P. C., that is to say, he adopted a procedure to be followed in an enquiry into cases before commitment to the Court of Session. While the enquiry was thus proceeding, an application was filed before the Magistrate on 25-7-1952, for the examination of Mr. Mahadevan on commission. The ground given was that he was seriously suffering from cancer of the tongue and that he was receiving treatment for that disease at Bombay, and it was impossible for him to be produced as a witness in court during the said enquiry. On 31-7-1952, the Magistrate allowed the application and off 4-8-1952, the District Magistrate of Patna issued a writ of commission to the Chief Presidency Magistrate, Bombay, for the examination of Mr. Mahadevan on commission. One Mr. Pandit, a Presidency Magistrate of Bombay, was ordered by the Chief Presidency Magistrate to execute the commission, and Mr. Mahadevan was examined on 14-8-1952, 16-8-1952 and 18-8-1952. In one of these cases, Mr. Mahadevan was cross-examined, but in the other the accused declined to cross examine although a sum of Rs. 500/- had been deposited in the court of the Magistrate at Patna by way of compensation to the accused concerned for the examination of Mr Mahadevan on commission.

(3.) On 28-7-1952, however, the President of India gave his assent to the Criminal Law Amendment Act, 1952 (46 of 1952), hereinafter referred to as the Act, and the same was published in the Bihar Gazette of 7-8-1952, by Notification No. LG-1-015/52 Leg. 1639, dated 6-8-1952. The object of the Act was to amend the Penal Code and Criminal P. C., 1898, and to provide for a more speedy trial of certain offences. Section 2 of the Act concerns an amendment to Section 165, Penal Code, (Act 45 Of 1860). Section 3 of the Act introduces a new Section as Section 165A in the Penal Code. Section 4 of the Act concerns an amendment to Section 164, Criminal P. C. 1898. Section 5 concerns an amendment to Section 337, Criminal P. C., 1898. Section 6 of the Act empowers the State Government by notification in the Official Gazette to appoint Special Judges to try offences mentioned in that section. Section 7 of the Act provides for cases triable by Special Judges. Section 8 of the Act states the procedure & powers of Special Judges. Section 9 of the Act concerns appeals and revisions to the High Court. Section 10 of the Act provides for transfer of pending cases to the court of Special Judges. The provisions of the Act contained in Sections 6, 7, 8 and 10 will be considered in detail later on.