EMPEROR Vs. JAFAR KHAN

JUDGEMENT

(1.) This is an application in revision which has been referred to this Court by the learned Sessions Judge with the recommendation that the convictions and sentences passed on the applicants should be set aside.

(2.) One of the appellants was fined Rs. 60 for the offence of voluntarily causing grievous hurt. The other two were fined Rs. 20 each for voluntarily causing simple hurt. The grievous hurt was a fracture of the skull. It appears, that there was a fight over irrigation in which the applicants beat the complainant. The reference is due to alleged irregularities in procedure. The case was tried by a Bench of Honorary Magistrates. They convicted the accused but on appeal to the District Magistrate a re-trial was ordered upon the ground that the accused, although they had been examined at one stage, had not been examined after all the, witnesses for the prosecution had been, heard. After remand, the order was passed which is the subject of this reference. The direction in the order for remand was that the trial should continue from the stage at which the charge had been framed. One of the grounds taken against the order which is now in question is that although the accused were examined after the remand, the witnesses for the prosecution were not re-cross-examined. They had already once been cross-examined after the charge had been framed; but it is said that as the order of remand directed that the trial should continue after the framing of the charge, there was obviously a further right to cross-examine. This is a most technical argument and it is certainly not one upon which any interference in revisional jurisdiction would be justifiable.

(3.) The other alleged irregularity is that the judgment was signed by three of the Honorary Magistrates one of whom had not been present on certain dates when proceedings took place. It is not disputed that two of the Honorary Magistrates would form a quorum and that two of them were present throughout the hearings. Reliance has been placed on the case of Dasrath Rai V/s. Emperor 1934 All 144. That case is authority for the proposition that it is an irregularity for an Honorary Magistrate to sign a judgment if he has not been present throughout the proceedings. It is also authority for the proposition that this is an irregularity which would not necessarily vitiate the trial. In that particular case the learned Judges came to the conclusion that there had been a substantial failure of justice because they thought that an Honorary Magistrate who had taken part in the deliberations and had signed the judgment might be presumed to have influenced his colleagues and if he had been absent during some of the hearings, he was riot really in a position to arrive at a just conclusion. The question whether in any particular case a substantial failure of justice has been occasioned is a question of fact and not of law and each case must be decided upon its own merits. In the present case the Honorary Magistrates have explained that the Magistrate who had not been present on all the hearings was present on the date when the judgment was delivered and that he inadvertently signed it and that he had taken no real part. In these circumstances it cannot be said that any failure of justice had taken place.