RAGHUBAR SINGH Vs. EMPEROR

JUDGEMENT

(1.) The applicant has come up in revision from an order requiring him to furnish security under Section 109, Criminal P.C. The order was made by a Magistrate. He went up in appeal to the Sessions Court which dismissed his appeal and he has now come up to the High Court in revision.

(2.) The point raised on his behalf is that the trial was illegal inasmuch as he was given no opportunity to cross-examine the prosecution witnesses further after the prosecution had closed their case and before he was called upon to enter upon his defence and produce his evidence, as provided by Section 256, Criminal P.C. Proceedings under chap. 8 are governed by the provisions of Sub-section (2) of Section 117 which requires that an enquiry under that chapter in a case in which the order requires security for good behaviour shall be made "as nearly as may be practicable" in the manner prescribed for conducting trials and recording evidence in warrant cases. The argument is that when proceedings in a case under Section 109, Criminal P.C., are required by this provision to be conducted in the manner prescribed for conducting trials and recording evidence in warrant cases, there is no reason why the provisions of Section 256 should not be followed. In the trial of a warrant case, the Magistrate under Section 254 frames a charge after taking all the evidence produced by the prosecution and making such examination, if any, of the accused as he thinks necessary. He is also empowered to frame a charge at any previous stage of the case if he is of opinion that there is ground for presuming that the accused has committed an offence triable as a warrant case. The charge is then read and explained to thus accused under Section 255 and he is asked whether he is guilty or has any defence to make Under Section 256 if the accused refuses to plead, or does not plead, or claims to be tried, he is required to state, at the commencement of the next hearing of the case, whether he wishes to cross-examine any, and, if so, which of the witnesses of the prosecution whose evidence has already been taken. If he says that he does wish to cross-examine them further, the witnesses named by him are recalled for further cross- examination. According to Sub-section (2) of Section 117 no charge is required to be framed in proceedings under chap. 8 and this is the main difference between proceedings under that chapter and proceedings under chap. 21 in regard to the trial of warrant cases. The Courts below are of opinion that inasmuch as no charge is framed in a proceeding under chap. 8 the stage at which according to Section 256 the accused is given an opportunity to cross-examine the prosecution witnesses further cannot arise and that therefore a person who is being tried under chap. 10 (VIII?) has no right to cross-examine the prosecution witnesses further after the evidence for the prosecution is closed.

(3.) I have been referred to a number of cases in which this question was considered. In Trilok V/s. Emperor a single Judge of this Court was of opinion that a person who is being tried under Section 110 (the procedure in a case under Section 109 is also the same) has the right to cross-examine the prosecution witnesses further under Section 256, Criminal P.C. This view was followed by a Bench of this Court in Chandan V/s. Emperor 17 A.I.R All. 274 The Judge by whom the case in Trilok V/s. Emperor was decided was also a member of this Bench and the view taken in Trilok V/s. Emperor was affirmed, although the question did not in fact arise in the case before the Bench. For the accused in that case had made no request to the Court for permission to Gross-examine the prosecution witnesses further under Section 256, Criminal P.C. and the question that was raised before the High Court was whether the accused had or had not been prejudiced by the fact that the Magistrate had not asked them to state whether they wished to cross, examine the prosecution witnesses further or not. Their Lordships found that there was not the slightest possibility of there having been any prejudice to the accused by the fact that they had not been so asked.