PANCHU SWAIN Vs. EMPEROR

JUDGEMENT

(1.) THE petitioner has been convicted on charges under Secs.323 and 504, Indian Penal Code. THE case of the prosecution was that a civil Court peon had been sent to attach certain property of the petitioner in execution of a decree. THE peon is said to have been assaulted and abused by the petitioner. THE petitioner's case was a denial. On 19 November 1940, the case for the prosecution was closed and the Magistrate fixed the 28 for the defence. On the 20 the accused applied for his witnesses to be summoned and summonses were issued. Among the defence witnesses was the Tahsil Panchayet who is said to live next to the house in which the occurrence is alleged tp have taken place and whom the defence wished to examine to prove that no occurrence took place there as alleged by the prosecution. On the 28 this witness did not turn up in Court. THE accused filed a petition stating that the witness was ill. THE Magistrate did not believe that the witness was ill and informed the accused that he would hear the witness's evidence if he were produced the next day. THE witness did not arrive the next day and in his absence the Magistrate decided the case and convicted the accused.

(2.) THE petitioner's grievance is that he has not had a fair trial owing to the Court's not having taken proper steps to secure the attendance of the Tahsil Panchayet. It has been held by this Court in previous cases that when a criminal Court issues process against a witness for the defence, it is the duty of the Court to secure the attendance of that witness unless the accused decides that he does not want to examine him. In the present case the Magistrate appears to have done nothing to assist the accused except issuing the summons. In the circumstances the accused has not had a fair trial and the conviction must be set aside. THE case will be re- taken up by the Magistrate after securing the attendance of the witness whom the defence wished to examine and continued from that stage.