KALLU Vs. BASHIRUDDIN

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Benares recommending that an order passed by a Special Magistrate of the First Class under Section 145, Criminal P.C., be set aside, or in the alternative that the order be modified as to costs.

(2.) It appears that one Bashiruddin started proceedings under Section 145, Criminal P.C., against the opposite party, who are now the applicants before me, alleging that a certain chabutra belonged to him and that the accused were interfering with his possession and were likely to commit a breach of the peace. The Magistrate found that the chabutra was in Bashiruddin's possession and passed orders restraining the opposite party from interfering with Bashiruddin's possession and ordered them severally and jointly to pay to Bashiruddin a sum of Rs. 428-6-0 as costs under Section 148 (3). It appears that the Magistrate recorded the evidence of the witnesses in English and that the evidence of the witnesses was not recorded in the vernacular either by the Magistrate himself or by any other person in his presence. This procedure being in contravention of the provisions of Section 356, Criminal P.C., constituted an illegality or irregularity, in the opinion of the learned Sessions Judge, such as to vitiate the whole proceedings.

(3.) As proceedings under Section 145 of the Code are inquiries under Ch. 12 of the Code it is clear that under Section 356 (1) the evidence of each witness should have been taken down in writing in the vernacular by the Magistrate himself, or in his presence and hearing and under his personal direction and superintendence, and should have been signed by him. This procedure was not followed. The learned Sessions Judge states that the Magistrate kept only an English memorandum of the evidence. I think the Magistrate's record amounts to more than a memorandum. He did in fact record the evidence of the witnesses at length and in great detail and I think his record amounts to more than a memorandum but it is certainly in English and there is no vernacular record, so it must be conceded that the provisions of Section 356 have not been complied with.