BAKIR SAHEB AMIR SAHEB Vs. EMPEROR

JUDGEMENT

(1.) The first point taken in this appeal is a question of law which arises in this way;-- The appellant, Bakir, has been convicted of making a false charge against one Aliser. The appellant had alleged that this Aliser had stolen a thousand rupee note from him. Aliser was convicted by the Magistrate in regard to this theft, but the convicton was set aside on appeal by the learned Sessions Judge. After setting aside the conviction, the Sessions Judge entered upon an inquiry for the purpose of ascertaining whether such proceedings as these should not be instituted against the then complainant, Bakir. Ultimately the Sessions Judge ordered Bakir to be committed for trial on the charge of making a false charge of theft. In the inquiry which preceded the commitment, the learned Judge took the statement of Aliser among others. Aliser has now disappeared, and his evidence could not be obtained in the Court of Session. Therefore, the learned Assistant Judge, by whom this trial was conducted, allowed upon the record the statement which Aliser had made to the Sessions Judge in the inquiry preceding the commitment of Bakir. As Aliser is a very important witness, it is desirable to decide in limine whether this admission of his earlier statement is in conformity with law or not.

(2.) Mr. Binning, contending for the negative, refers to Section 33 of the Indian Evidence Act, under which alone the statementtcould be admissible: and contends that one necessary condition laid down by Section 33 is not in this case satisfied; that is to say, in this case, Mr. Binning argues that the present appellant, Bakir, had not the right to cross-examine Aliser in the inquiry before the Sessions Judge. Admittedly, unless Bakir had that right, Aliser s previous statement, which has gone upon the record, must be excluded. In my opinion Mr. Binning s objection is well founded.

(3.) Some attempt was made to suggest that the inquiry held by the learned Sessions Judge might be attributed to Section 477 of the Criminal Procedure Code, so that the preceding inquiry should be regarded as a proceeding resulting in commitment with the result that all the usual requirements which are needed in inquiries terminating in a commitment should be observed. It appears to me, however, impossible to ascribe the inquiry to any section but Section 476. That is the section which the learned Sessions Judge himself quotes, and that section authorizes precisely the kind of inquiry which this is. Section 477, moreover, makes no reference to any inquiry at all. If, then, the inquiry must be held to have been made under Section 4(76, it seems to me that the appellant, Bakir, had no right to cross-examine the then witness, Aliser. Certainly no such right is conferred by the section. Indeed, the section goes so far as to say that the inquiry is merely discretionary, for it may or may not be made; in other words, it was perfectly competent to the Sessions Judge to make the order which he finally did make without taking any evidence at all; and if he chose to take evidence, it appears to me that it was entirely within his discretion to say when and where that evidence should stop. I regard Section 476 as giving the widest discretionary powers to the criminal Court and as deliberately refraining from imposing any special formalities to hamper the discretion of the Court. The wisdom of that is obvious, because it is clear that grave danger of prejudice would be incurred if the informal inquiry contemplated in Section 476 were to be expanded and formalized into an investigation which would be practically a trial.