STATE OF J&K Vs. SULTAN GURU

JUDGEMENT

(1.) THIS is a petition under Article 134 (1) (c) of the Constitution of India for grant of certificate of fitness for filing an appeal before the Supreme Court of India against the judgment and order dated 22 -4 -1977 of this court.

(2.) THE facts of the case have been set out in the aforesaid order of this court. Briefly speaking during the progress of trial of the case before the court of Sessions the prosecution sought transfer of the statement of the proseeutrix recorded by the committing court on the Sessions file on the ground that the proseeutrix was not traceable despite the fact that efforts were made to locate her whereabouts. This request of the prosecution was vehemently opposed by the accused on the ground that the statement of the witness had not been duly recorded by the Committing Magistrate in accordance with Sec. 356 and Sec. 360 of the Code of Criminal Procedure as the statement was not signed by the Magistrate and also it was not accompanied by an authenticated vernacular translation of the evidence given by the witness in English. The Session Judge upheld the objection and refused to transfer the statement on the records. Thereafter the matter came up in revision before this court. This court ruled thiat the statement could not be transferred and was not admissible under section 33 of the Evidence Act as the Committing Magistrate had committed breach of the rule which required the Magistrate to sign the statement and also prepare an authenticated vernacular translation of the evidence given by the prosecutrix.

(3.) THE learned Addl. Advocate General has submitted that the judgment raises a substantial question of law for which there is no authoritative pronouncement of this court or of the Supreme Court. He has further submitted that the mere fact that an imperative statutory rule of procedure was not followed by the Magistrate while recording the statement of the prosecutrix is not enough to render the statement so recorded inadmissible in evidence u/s 33 of the Evidence Act. Omission to comply with the legal requirement of procedure would not vitiate the trial or proceeding. Reliance is placed upon the observations made in A.I.R. 1927 Privy Council 24, AIR 1950 Lahore 123, AIR 1934 Cal 636 and AIR 1931 All.3.