EMPEROR Vs. FAKIRA MAHANTI

JUDGEMENT

(1.) This is an appeal by the Crown against the acquittal of one Fakira Mahanty on 7th November of last year by the learned Deputy Magistrate of Puri in a prosecution under Section 47, Bihar and Orissa Excise Act. The accused was charged with having cocaine in his possession on or about 19th July 1927. The charge was dated 23rd August 1927, the witnesses for the prosecution having been examined on 8th August 1927. Having regard to the decision we have arrived at I do not propose to say anything about the merits or demerits of the case. The witnesses, however, were cross examined on 8th September 1927, being a month after their examination-in-chief. On 3rd November the Magistrate held a local enquiry and visited the scene or rather the house of the accused and made a memorandum of his enquiry on the date which I have mentioned. It is perfectly clear from his judgment that he used this local enquiry not for the purpose of understanding the evidence only but as appears clearly on the face of his judgment for the purpose of obtaining information which did not appear from the evidence of the witnesses. He states among other things in his judgment that at his investigation he found that the bedroom at the back of the premises was not locked, but comments upon the fact that from what he saw it was impossible to lock the room as was suggested by the witnesses for the prosecution. There are other matters in the judgment which also clearly point to the fact that in a sense he made himself a witness in the case and obviously this procedure is quite irregular, and in adopting it he went beyond the powers which are granted to him by the Criminal P.C. under which enquiry was held. In these circumstances, in my judgment, the judgment of the learned Magistrate cannot stand and I order the case to be sent back and to be re tried de novo. Either the prosecution or the defence shall be entitled to examine the same witnesses or any other witnesses which may seem to be necessary. The case will be sent back to the file of such Magistrate as the District Magistrate directs.

(2.) I agree to the order proposed.

(3.) I would draw attention to an odd alteration on the second page of the deposition of the Sub-Inspector, P.W. 1, which I fail to understand and which may have some importance. Apparently "Halila Singh was first written; it now appears as "Nabaghan Singh," a strange alteration which does not fit in either with the prosecution case or with the rest of the record of the evidence wherein it may be observed constable Nabaghana Baliar Singh is nowhere else referred to as "Nabaghan (or even Nabaghana) Singh," but as constable Nabaghana. One would have expected the original name to have been cut out, the new name written above the line instead of, as has been done over the original name.