JIBACHH SHAH Vs. STATE

JUDGEMENT

(1.) The petitioner, Jihachh Shah, of village Deorh, police station Phulparas, district Darhhanga, has come up in revision against the order dated the 30th September, 1961, passed by the Additional Sessions fudge of Darbhanga, dismissing the appeal of the petitioner against his conviction and sentence under Section 178, I P. C, passed by the Munslf Magistrate, First Class. Madhubani.

(2.) It appears that the petitioner was an accused in a case under Section 323, I. P. C. pending in the Court of the Munsif Magistrate, Madhtibani. After the close of the prosecution case and his examination under Section 342, Cr, P. C., he filed a petition in writing on 11-1-61 before the Magistrate for his examination as a defence witnessn order to prove certain facts and documents. His grayer was allowed and he was examined in chief on that date. On the following day, i.e., on 12-1-61 he refused to come to the witness box and take oath and offer himself for cross examination. He disobeyed the order of the Court in this regard and in consequence thereof the learned Magistrate proceeded against him for the commission of an offence under Section 178, I. P. C. He convicted and sentenced him to pay a fine of Rs. 100 and in default to undergo simple imprisonment for a period of ten days. His appeal against the order of his conviction and sentence was dismissed by the Additional Sessions Judge, as stated above.

(3.) Mr. J. N. Verma, appearing for the petitioner has urged in this Court that the learned Magistrate was not justified in convicting the petitioner under Section 178, I. P. C. inasmuch as he himself had committed certain errors in recording the deposition of the petitioner on 11-1-61 and he refused to correct the same in spite of the petitioner's request. That being so, the petitioner was justified in not going to the witness box on the following day for his cross examination. Mr. Verma's further argument is that the petitioner being an accused in the case it was open to him to withdraw from the witness box at any time during the course of his examination as a defence witness and the trial Court could not insist on petitioner's cross examination or his taking oath. On behalf of the State it has been contended that under the new provision of Section 342A, Cr. P. C. no doubt an accused cannot be called as a witness except on his own request in writing, but if he has made a request for his examination and his request has been accepted by the Court, he cannot withdraw from the witness box at his sweet will after his examination in part. Learned counsel for the State has, therefore, urged that the refusal of the petitioner in his case to take oath and offer himself for cross examination in spite of the direction of the Court clearly amounted to an offence under Section 178, I. P. C. and is such the procedure followed by the learned Magistrate in convicting and sentencing the petitioner under Section 480, Cr. P. C. read with Section 178, I. P. C. cannot be said to be illegal.