HARI MAHADEO GORE Vs. EMPEROR

JUDGEMENT

(1.) ON the 20th July 1925 three witnesses were examined : the Sub-Inspector as Court Witness No. 1, Mangesh, the complainant, as P. W.1. and Sheo Narain Rathi as P. W. 2. The witness last mentioned was only partly examined in-chief. The rest of his examination-in-chief and his cross-examination were taken on the 23rd July 1925. On that day the accused put in a written application praying that the police diary be sent for and that he be supplied with copies of the statements made before the investigating officer by the witnesses to be called for the prosecution. The Magistrate rejected the application stating that 'they were of no real value as evidence." It is clear from the record that the diary was at this time not produced in Court and that the Magistrate had not read its contents. This order clearly ignored the provisions of Section 162, Criminal P.C. The offence with which the accused is charged, was reported to the police, and the police, after investigation had refused to challan it, it being of opinion that the case was the outcome of a love intrigue and was one of a civil nature. In view of this fact the furnishing of the copies was a matter which might be of considerable importance to the accused. It is not possible to say that the Magistrate's rejection of the accused's application has not prejudiced the accused.

(2.) THE appellate Magistrate's view that the provisions of Section 162, Criminal P.C. do not apply to a case of complaint, is not justified by anything in that section, and neither the counsel for the Crown nor the complainant's pleader has attempted to support it. I am unable to see how the application can be said not to have been made at the right time. To interpret the. section to mean that the copies can be demanded only after a witness' cross-examination is begun, which is what I understand the appellate Magistrate to hold, would lead to inconvenience and delay in the trial. The application does not ask that the copies be furnished then and there or before the witnesses' examination is begun. It asks for no more than what Section 162 allows and that in the very words of the section.

(3.) IT might be sufficient to order a further enquiry for the purpose of supplying the omission, but, on the whole, I think the interests of justice will be better served by ordering a new trial before a competent stipendiary Magistrate. The evidence has been recorded in a hap-hazard fashion without any advertence to the essentialities of the case. Neither the counsel for the Crown, nor the pleader for the complainant is able to point to anything on the record which shows that any ornaments were before the witnesses and were shown to them when they professed to identify them. Shanta bai only speaks of owning "all the ornaments mentioned in the list"; which list it is not clear, there being several on the record.