(1.) I have the misfortune to differ from my learned brother in the interpretation of Section 360, Cr. P. Code and its applicability to proceedings under Chap. XII of the Code. Section 356 provides that in all trials, and in enquiries tinder Chaps. XII and XVIII the evidence of each witness shall be taken down in writing in the language of the Court. Section 360 says that as the evidence of each witness taken under Section 356 is completed it shall be read over to him in the presence of the " accused" or his pleader. No exception is made in the section in the case of proceedings under Chap. XII which could easily have been made if the legislature intended to exclude them bat it is argued that the use of the word " accused". limits the applicability of Section 360 to cases where a person is charged with the commission of any offence for which he is liable to be punished, and excludes Chap. XII. The whole controversy, therefore, hinges on the meaning of the word " accused" which has not been defined in the Code or any other enactment.
(2.) There is ample authority for the view that the term " accused" means any person over whom the criminal Court exercises jurisdiction. See Jhojha Singh V/s. Queen-Empress (1896) 23 Cal. 493, Lalit Mohon Maitra V/s. Surja Kanta Acharjee (1901) 28 Cal. 709, Hopcroft V/s. Emperor (1908) 36 Cal. 163, Queen-Empress V/s. Mona Puna (1892) 16 Bom. 661 and Queen-Empress V/s. Mutsaddi Lal (1898) 21 All. 107. I must demand very cogent reasons to make me deviate from an unchanging current of decisions. I am not impressed by the argument that a witness in a criminal case is a person over whom the criminal Court assumes jurisdiction as it can summon him and even issue warrant to enforce his attendance. It is not assuming jurisdiction as a criminal Court, but as a Court, in the same way as a civil Court, doing a quasi-ministerial act, as a preliminary to exercising its criminal jurisdiction over some other person. Nor am I persuaded by the circumstance that there may be more parties than one in a Section 145 case and all of them should not be called accused or that the order under that section may be passed in the absence of a party. A criminal Court does pass orders against an absconding accused. The view which my learned brother entertains in this matter has led him to hold in Binode Behari Nath V/s. Emperor , that a person against whom proceedings under Chap. VIII have been taken is not an accused person though he may be punished with imprisonment on failure to give security. I am unable to agree in the view that Section 360 does not apply to proceedings under Chap. XII and adhere to the decision in Aswini Kumar Dutt V/s. Puli to which I was a party. My opinion is that in all criminal cases where evidence is taken down under the provisions of Section 356, the requirements of Section 360 must be complied with. Otherwise there is no sense in taking down evidence verbatim or in extenso, as distinguished from a mere memorandum of it, unless its correctness is checked in the manner provided in Section 360.
(3.) The second ground on which this Rule was granted is that the Magistrate should have given some reasons for his decision. Here also I am not in agreement with my learned brother that it is not absolutely necessary for the Magistrate to do so and I follow the decision in the case of Bhuban Chandra Hazra V/s. Nibaran Chandra Santra A.I.R. 1922 Cal. 382, to which I was a party. But it is not necessary to pursue this point as I am of opinion that the judgment of the Magistrate does not offend in that respect. Considering the state of the record, the judgment is unassailable on this ground.