SUKHAI AHIR Vs. EMPEROR

JUDGEMENT

(1.) This case has been referred to two Judges of this Court by another member of the Court who was dealing with a reference by the Sessions Judge. The reference raises the broad question where there are strictly speaking, two cases for riot which are practically one controversy, how far a Magistrate, who tries both, whether as separate oases or simultaneously at one hearing may treat the evidence given in the first case in order of date, which has not been repeated in the second case and has not been formally transferred to the record, as evidence in the second case, as though it had been solemnly-repeated all over again by the witnesses or had been read over to them and acknowledged by them as part of the evidence in the second case. We think that all these cases, which are not of uncommon occurrence, and the difficulties which occasionally arise in the procedure, must be judged, each by its own particular circumstances.

(2.) As has been said in one case, and as the learned Judge referring this case pointed out, a Court has no right, technically speaking, to consider at all the evidence given in one case for the purpose of reaching his conclusions in another, and if the two cases are totally unconnected, it is obviously impossible to say that such a procedure could be covered by the general excuse that no prejudice could be done to either side. If the two cases deal with separate issues, even although they arise out of the same set of circumstances and to some extent raise the same controversy and if also the parties claim that the evidence in the first case is irrelevant to the issues in the second case, the matter is clear. But if the reception of the evidence required to enable the point to be decided in the second case is merely a formal repetition of evidence which has already been given and heard and possibly also decided by the same tribunal and it is directed to the same issue or issues of fact, its vain repetition may be reasonably waived. If the parties for their own convenience, and other obvious motives consent to treat the evidence in the former case as though it had been repeated in the latter case such evidence is by implication and for all practical purposes brought on to the record of the second case, although not actually recorded. Whatever may be said about the Magistrate's handling of the merits, with which we have at this moment nothing to do, the explanation which he tendered dealing with this objection which was before the Sessions Judge is a singularly clear and able document. He sets out the facts which are important in this as is every other case, and it is upon those facts alone that we propose to dispose of this matter.

(3.) In this village there are two parties who have been fighting for eight or ten years. They have had so much friction and so many cases that it is impossible to obtain a single independent witness to anything which occurs between them. On the 22 January, of this year they had a fresh dispute. Both parties made a report against the other in the usual way, one to the thana, one by wire to the Sub- Divisional Officer. The police made enquiry and came to the conclusion that strictly speaking there were two separate riots, although they were intimately connected with one another, and this is a most important fact in what we have to decide. Bach party alleged in his own defence that there was only one riot. The party, who may be said to be complaining in this reference set up an incorrect motive which the Magistrate disbelieved. He has given his reasons for not believing it and he says that the reasons which he gives were features common to both cases, that is to say, the prosecution in one case conducted its case and framed its evidence upon the same theory which it asked the Court to accept as the theory in defence of the charge against it in the second case; nor is it as though the evidence relied upon by the complainants in this reference in their own defence was confined merely to the evidence of witnesses whom they had already called in the counter case; they called separate evidence as well and the Magistrate says that they relied upon the same motive as the evidence given on the same motive in the other case had bean directed to establish which he had disbelieved. He says that without a reference to the evidence in the other case which had not been technically brought upon the record in the second case he would have been forced, in the absence of evidence to the contrary to come to the conclusion that the motive was established and he rightly says that he would have found himself in a moat absurd situation, created by the law, as it is suggested to be by this reference, of disbelieving something in one case and believing it in the other under precisely similar circumstances. He submits by the way as a matter of argument that where two incidents and two charges arising out of the same circumstances have to be dealt with strictly as two cases and two charges although they are in substance one, either that each case should be tried by a different Magistrate or that if a Magistrate tries both, he should allow himself to be assisted by evidence in one case not technically recorded in the other. But in addition to the facts above sated it appears that although separate judgments were written and although the charges and cases were separate, and, therefore, would ordinarily be heard independently, in substance they were heard together and the arguments in both cases were heard on the same day and were addressed to the Court by the same gentleman, who freely referred to the evidence in the one case in support of their arguments in the other, and were, therefore on behalf of their clients guilty of the very irregularity, which their clients now ask the High Court to say renders the trial a nullity.