EMPEROR Vs. SHEIK ABDUL

JUDGEMENT

(1.) This reference has now been returned with the further evidence recorded by the learned Second Presidency Magistrate under our order of 3rd January 1916. The learned Magistrate has also, in accordance with that order, recorded an opinion. We regret, however, to find that he has not taken steps to carry out our directions to the full extent. The additional evidence which has been recorded is of very much the same type as the evidence recorded in the first instance of which we had reason to complain, and the statements now made by the additional witnesses do not carry the case much further against any one of the six accused.

(2.) With regard to the statement of the learned Magistrate as to the procedure adopted in the Police Court for the proof of previous convictions, we may say at once that we cannot accept the learned Magistrate s suggestion that Presidency Magistrates are absolved from the ordinary rules of evidence in taking proof of such previous convictions. Whenever it is required to prove a previous conviction against a man, whether it be for the purpose of enhancement of punishment under Section 75, Indian Penal Code, or in proceedings under Chapter VIII of the Criminal Procedure Code, such previous conviction must be proved strictly and in accordance with law. Unless they are so proved, no Court, whether it be that of a Presidency Magistrate or not, can properly take such previous convictions into consideration against an accused person.

(3.) In the present case, the learned Magistrate says that against the accused No. 1, Sheik Abdul, five previous convictions have been proved, against No. 3, Abdul Rahim, one previous conviction, against No. 5, Ishak Khan, two previous convictions, and against No. 6, Sheik Bombia, eight previous convictions. Apart from the proof of previous convictions with which we will deal in discussing the case of each accused, additional evidence was directed to proving instances of picking pockets against the accused or some or one of them. Speaking generally, we may say that at the second hearing, no attempt was made in the Court below to fix these witnesses to any particular time or detail by which their statements might be tested. Their statements are of the vaguest possible character.