HARI KRISHNAJI GHATE Vs. EMPEROR

JUDGEMENT

(1.) 1. The applicant has been convicted of a criminal breach of trust in respect of money belonging to the District Council, Chanda, in which body he was employed as Head Clerk. He has been sentenced to three years' rigorous imprisonment and his appeal has been dismissed. In the course of the trial the accused, when the prosecution case was closed, asked for a long adjournment to go through the documents and to file his statement. On 24th October 1933 an order was passed giving him time till 30th October. The subsequent order-sheets run as follows: 30th October 1933. Accused in person and by Mr. Deshmukh. He prays for sis days' time more to file a statement. He is given time till 4th November 1933. 4th November 1933. Accused files a written statement. Prosecuting Inspector says that he has got some more points to suggest as the statement is not complete. Case for 6th November 1933. 6th November 1933. Accused in person. Prosecuting Inspector gives in writing the points on which further reply is needed. The accused undertakes to reply to them in writing. He to do so tomorrow. 7th November 1933. Accused in person. He shows a rough copy of his statement. He prays for time till tomorrow to file a copy of it. He is given time till tomorrow. 8th November 1933. Accused in person and by Mr. Deshmukh. He files a written statement... Accused also examined. His defence recorded....

(2.) THE further points to which the order-sheet refers appears to have been a questionaire consisting of at least 22 questions, and possibly more, and what is referred to on 8th November in the order-sheet as a further written statement is an answer to this questionaire number by number. Some of the answers are long and some comparatively short. The questions which were put are not forthcoming and the Magistrate in reply to a demand from the Additional Sessions Judge as to where the questions were stated that as they were pencil notes they were not kept on the record. The action of the Magistrate in this case is astonishing. He must have been perfectly aware of the highly irregular nature of his proceedings, as in the case of Krishna Murarilal v. Emperor A.I.R. 1933 Nag. 269, be had been guilty of exactly the same procedure and had been rebuked by an order of this Court. His conduct in that case led to the transfer of the case to another Magistrate. That case was tried in Nagpur and it seems impossible that his deficient handling of it was not brought to his notice as this Court's order was passed on 24th February 1933 and the Magistrate was not transferred to Chanda until 14th April following. In spite of the fact that it was pointed out to him in that case that his procedure suggested that he was too apt to be influenced by suggestions made by the prosecuting counsel, he has repeated the irregularity in an aggravated form. Not only has he failed to consider the questions which were suggested by the Prosecuting Inspector and passed them on to the accused to be answered en bloc without any modification, but he has suppressed or at the very least failed to keep on the record the questions themselves; he appears entirely to have abdicated his duties Under Section 342, Criminal P.C., in favour of the prosecution. It is impossible from the replies given in the second "written statement" to determine exactly the nature of the questions.

(3.) THE few questions that were put were after the reply to the questionaire had been received. Not only is the conduct of the Magistrate in contravention of the intention of Section 342, Criminal P.C., but in failing to put the questions on record and thereby preventing the appellate and revisional Court from determining the nature of the questions there has been a contravention of Section, 364, Criminal P.C., which enjoins that the whole of such examination (i.e., the examination conducted by a Magistrate) including every question put to the accused and every answer given by him shall be recorded in full. The breach of this direction cannot be got over by the pretence that what the accused filed is a second written statement. It is not. It is a series of answers to questions put to him, questions not put by the Court but by the prosecution and which are not even on the record.