BASAPA NINGAPA Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by one Basapa Ningapa, who has been convicted by the learned Sessions Judge of Bijapur of the offence of using as genuine a forged document and has been sentenced to three years rigorous imprisonment.

(2.) The Assessors agreed that the appellant was guilty of the offence charged.

(3.) The difficulty which confronts us in taking the view which was adopted by the learned Judge of trial arises from the manner in which the trial was conducted. There are several passages of importance in the judgment which we are unable to refer to any evidence upon this record. And though the learned Pleaders on both sides have done their best to assist us in this respect, none of them is able to justify these particular passages by reference to any recorded evidence. It would seem that the learned Judge allowed himself to refer to matters appearing in other litigation but not produced and proved upon the present record, as they should have been if they were to be used against the prisoner. Apart from this generally unsatisfactory character of the trial, there has been, so far as we and the learned Pleaders can discover, a violation of the imperative provisions of Section 342 of the Criminal Procedure Code, which enacts that for the purpose of enabling the accused to explain any circumstances appearing in evidence against him, the Court may put such questions as it considers necessary, "and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence." On the record before us it appears that the Court omitted to question the prisoner under this section. The case, therefore, in this respect resembles. Subramania Iyer v. King-Emperor 3 Bom. L.R. 540, where the Judicial Committee observed that "their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity." And if it was enough to vitiate the trial there that the accused was tried for more offences than the three offences which are permissible at one trial, then it seems to me a fortiori enough to vitiate this trial that the prisoner was convicted and sent to prison without being asked for his explanation of the matters appearing against him. That omission in my judgment goes deeper than the illegality case 3 Bom. L.R. 540 : 11 M.L.J. 233 : 5 C.W.N. 866 : 25 M. 61 : 28 I.A. 257 (P.C.) : 2 Weir 271. For it is, I think, repugnant to one s natural sense of justice that a man should be convicted without being heard. It is no answer to that objection to say that the appellant had an opportunity of making a statement before the Committing Magistrate. For, first, he was entitled, if he chose, to reserve his statement until the Court of Session, and in any event, the law provides imperatively that before the Court of Session, he shall have an opportunity of making his Statement. This view of the consequences of the violation of Section 342 follows that which was taken by a Bench of this Court in Emperor v. Savalya Atma Pastya 9 Bom. L.R. 356 , where the conviction and sentence were reversed and a re-trial was ordered, the Court observing, in words which we commend to the attention of the learned Sessions Judge, that "in all criminal matters, the utmost strictness must be observed and, forms must be closely complied with where the liberty of the subject is at stake, when from the Statute prescribing those forms it appears that they were prescribed by the Legislature in the interests of the accused." I may refer also to a similar case of Emperor v. Harischandra Talcherkar 10 Bom. L.R. 201.