HIRALAL GHOSE Vs. KING-EMPEROR

JUDGEMENT

(1.) The question we have to decide is whether an omission by a Court to comply with the provisions of Section 360, Cr.P.C., vitiates the trial. The provisions of the section are mandatory and in the case of two witnesses these provisions were totally disregarded. The test to be applied in deciding "whether mandatory enactments" shall be considered directory only or obligatory with an implied "nullification for disobedience" is to be found in the judgment of Lord Penzance in the case of Howard V/s. Bodington [1877] 2 P.D. 203 following the conclusion expressed by Lord Campbell when sitting as Lord Chancellor in the case of the Liverpool Borough Bank V/s. Turner [1861] 30 L.J. Ch. 379, to which reference was made by the learned C.J. of this Court in the Government of Assam V/s. Sahebulla . "In each case you must look to the subject-matter, consider the importance of the provision that has been disregarded and the relation to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory." The general object to be secured by Chapter XXV of the Code which includes Section 360 is to ensure the accuracy of the record and also that the accused should know and understand what evidence is given at the trial. The reading over the evidence to the witness is so essential to the framing of an accurate record that I feel bound to hold that the direction in Section 360 that the evidence shall be read over to the witness is imperative and not only directory. It follows therefore, that the omission to read over their evidence to these two witnesses was an illegality which vitiated the trial. It is not necessary to consider whether this omission has in fact caused a failure of justice since Section 537 can have no application.

(2.) We have reason to believe that the practice which was condemned by Jenkins C.J., in 1909 when delivering his judgment in Jyotish Chandra Mukherjee V/s. Emperor [1909] 36 Cal. 955 still continues. We anticipate that the result of our decision in this case may have serious consequences but that is no reason why we should fail in our duty to insist that the Subordinate Criminal Courts should hold their trials in accordance with the clear provision of the Criminal P. C..

(3.) Before the last amendment of this Code in the Statement of Objects and Reasons attached to the first Draft Bill (III of 1914) the following passage occurs : "At present it is believed that Section 360 which requires the Court to read over the evidence of each witness to him in the presence of the accused or his pleader is not always observed in practice and occasions unnecessary inconvenience. The amendment" (i.e. Clause 83 of the Bill) provides accordingly for a witness reading over his deposition himself and further that the deposition need only be read in the presence of the accused if the "accused so desires." In the Bill introduced in the Imperial Legislative Assembly on 20 September 1917, this clause was omitted. This Court when consulted on the Bill strongly urged that Section 360 of the Code be amended as was suggested by Clause 83 of the Bill as originally framed. The Legislature having deliberately decided that the inconvenience caused by the provisions of this section did not justify an alteration of the law on this point is a further reason, if any is necessary, why we should insist on a strict observance of this clear provision of the law.