SHEIKH IBRAHIM Vs. EMPEROR

JUDGEMENT

(1.) 1. The formal order of transfer by the District Magistrate to Mr. Kerawala is dated 4th July 1933. On 7th July 1933 Mr. Kerawala noted on the. order-sheet that the case has been received. He summoned the accused who were on bail and directed summons to five witnesses for 17th July, five for the 18th and the rest for the 19th. On 17th July the accused were present and were represented by Mr. Hifazatali and Mr. Haiderkhan, who have been referred to as senior and junior counsel in the case, Mr. Haiderkhan claimed a de novo trial. and a fresh trial commenced by the examination-in-chief of the prosecution witnesses anew. The prosecuting Inspector contended that, as the old charge was still subsisting, the cross-examination by the accused should take place. Mr. Hifazatali raised no objection to this and promised to take up cross-examination from the next day and this request was granted. On 18th July the examination-in-chief and crossexamination continued. During the day Mr. Hifazatali asked that the medical witness should not be examined in, chief again and that his evidence previously recorded should be taken on the record in this case and that he should, be allowed to cross-examine him. The Court acceded to this request as the doctor's evidence was of a formal nature and as the, request was on behalf of the accused; On the following day, 19th July, Mr. Hifazatali made a similar request in respect of two witnesses Ramkhilawan and Mahabir Prasad. On this the Magistrate recorded an order in the order-sheet: As the witnesses are of formal nature, the re. quest is granted and they are crossed (presumably the Magistrate's contraction for cross-examination).

(2.) ON the next day, 20th July, Mr. Hifazatali was absent and Mr. Haiderkhan put in an application to the effect that the accused should not be required to cross-examine the remaining witnesses at this stage. The reasons given were that the senior defence counsel Mr. Hifazatali was absent and also that the prosecution did not examine all their witnesses on the 19th as had been ordered on 7th and also that copies of the statements in the police diary of the statements of witnesses who were then to be cross-examined had not been given to the defence. This application was not accepted. It was pointed out that as many witnesses as possible were examined on the 19th and that the examination of those who could not then be examined had necessarily to be postponed to the 20th. The absence of the senior counsel was not held a good reason for postponing the cross-examination. The Magistrate pointed out that such extracts as were relevant of the police diary would be supplied at the time of cross-examination. The accused were also informed that a charge was subsisting against them and that Section 350, Criminal P.C., only directed that the witnesses had to be examined again and that there would be no further opportunity for cross-examination, and that if they wished to cross-examine, they should do so then. On that day five prosecution witnesses were examined, cross-examined and discharged. On the following day, the 21st, three more were examined, cross-examined and discharged. On 22nd July Mr. Haiderkhan asked that the evidence of the one remaining prosecution witness, who was reported to be ill and could not appear, should be adopted in the present case. Necessarily he did not claim to cross-examine him. This closed the prosecution case. The Magistrate's attention was then apparently drawn to a ruling of this Court in Sheoraisai v- Dani AIR 1981 Nag 39 and on the strength of this ruling he framed charges against all the accused anew. He correctly gave the accused an opportunity of further cross-examination, to which they were entitled in view of the framing of the charges. Then there follows on the order-sheet: Mr. Haidarkhan says that he does not wish to further cross-examine and does not want any adjournment to say so.

(3.) THERE is absolutely no force in the contention that an adjournment should I have been given to enable the accused to decide whether they would cross-examine any witnesses after the charge had been framed on 22nd July. No waiver was invited by the Court and the counsel who represented all the accused stated expressly that he did not wish to cross-examine any of the prosecution witnesses. The counsel was entitled to claim an adjournment for considering the question, and he declined to do so as the decision had already; been taken not to cross-examine the! witnesses again. It is suggested that he took this step as he was dissatisfied with the manner in which the case had already been conducted in being forced to cross-examine the witnesses on the preceding days, and I am asked to draw the inference that if he had recalled the prosecution witnesses for further cross-' examination, they would have had time to meet together and concoct statements which would show an unbroken front in cross-examination. It is obvious that had they done so, it would have been greatly to the advantage of the accused since such statements, if they did not tally with what had been elicited in the cross examination before the charge, would have differed from it and damaged their credibility as witnesses. No such reasoning on the part of Mr. Haidar-khan appears on the record.