PUBLIC PROSECUTOR Vs. CHOCKALINGAM AMBALAM

JUDGEMENT

(1.) The two appeals to which this revision petition relates have not been heard upon the merits, as the Sessions Judge has ordered a re-trial of the case in consequence of what he regards as illegalities in the original trial.

(2.) On 26 April, 1928, the trying Magistrate refused to adjourn the case when the Vakil for the accused intimated his intention of making an application to the High Court for a transfer. The learned Sessions Judge is of opinion that the Magistrate in refusing an adjournment on that occasion acted in violation of Section 526 (8), Criminal P. C.. The learned Public Prosecutor contends that the intimation of intention to apply for a transfer was not made in the coarse of the trial, which had been closed before it was made, though judgment had not then been pronounced, and, therefore, the Magistrate in refusing to adjourn the case did not contravene the provisions of Section 526 (8). It appears that before the Sessions Judge the Public Prosecutor of Ramnad conceded that after refusing to adjourn the case the Magistrate heard arguments in the case before he pronounced judgment. If that were so, the trial would not have been over before the intimation of intention to apply for a transfer was made. In an affidavit in support of an application to this Court for bail (Criminal Miscellaneous Petition No. 288 of 1928), the Vakil for the accused asserted that some arguments in the case were heard by the Magistrate after he refused the adjournment and before he pronounced judgment. But the Magistrate himself has stated that he heard no arguments in the case after refusing the adjournment. His diary shows that, when the judgment was about to be pronounced, an application under Section 526 was made and dismissed and that he then pronounced judgment. His order on the application itself shows that the application was presented when the judgment was about to be pronounced. The prosecuting Sub-Inspector of Police who conducted the prosecution, has made an affidavit that no arguments were heard after the application for adjournment was made. I am informed that the Local Public Prosecutor who made the " concession" before the Sessions Judge had not appeared at any earlier stage of the case and was not instructed to make any such " concession ". I must accept the Magistrate's account of what happened before him, which as I have mentioned, is supported by the record of the case, and find that no argument was heard after the application for adjournment was made but that the case had been closed before that application was made. It has been contended for the accused that, nevertheless, an application made before judgment was actually pronounced would be made in the course of the trial within the meaning of Section 526 on the ground that the trial includes the pronouncing of judgment. But Secs.366 and 497 of the Code make it clear that a trial, as that word is, used in the Code, is over before the judgment is pronounced and that the pronouncing of judgment is no part of the trial. I find, therefore, that the intimation of intention to apply for a transfer and the application for adjournment for that purpose on 26th April, 192i5, were not made in the course of the trial and that the Magistrate's refusal to adjourn the case did not violate the provisions of Section 526 (8) and did not invalidate the trial.

(3.) The learned Sessions Judge has also found that the trial was vitiated because P. W. No. 7 was not produced for further cross-examination after the framing of the charge, though the accused had intimated that they wished to cross-examine him again. There is no record that after the charge was framed on 13 November, 1926, the accused were asked in accordance with Section 256, Criminal Procedure Code, whether they wished to cross-examine the prosecution witnesses. But that is of no consequence as they themselves put in a list of the witnesses whom they wished to cross-examine again, which the diary shows that after the framing of the charge their Vakil promised to do. In their list six witnesses were entered, including P. W. No. 7 but eventually P. W. No. 7 was not cross-examined again. The diary of the Magistrate shows that on 26 November, 1926, P. Ws. Nos. 1,3,4 and 5 were cross- examined again and P. W. No. 6 was absent and that the case was adjourned to 16th December, 1926, for further cross-examination and examination of defence witnesses without any mention of P. W. No. 7. On 16 December, 1926, P. W. No. 6 was again absent and the Magistrate noted in his diary: "11 defence witnesses present. Prosecution Witness No. 6 is absent for further cross-examination. The summons sent to him had not been returned served. As his further cross-examination is pressed by the defence and as it is not over, no defence witness can be examined." Here again there is no mention of P. W. No. 7 which could be strange if the case was being delayed and the 11 defence witnesses left unexamined because P. W. No. 7 as well as P. W. No. 6 had not been cross-examined again. But it appears that P. W. No. 7 was actually in the Magistrate's Court on that day and was examined as a witness in a counter-case between the same parties, and yet no attempt was made to cross- examine him in this case. In those circumstances the omission to say anything in the diary about him as a witness still to be cross-examined becomes even more significant. On 6th January, 1927, the case was again adjourned for the examination of P. W. No. 6 without any mention of P. W. No. 7. On 24 January, 1927, the cross-examination of P. W. No. 6 was dispensed with by the accused, and they were examined, as would be done at the close of the prosecution evidence under Section 342, Criminal Procedure Code, and the evidence of the defence witnesses was begun which would not have been done if the accused still wanted, to cross examine P. W. No. 7. The trial dragged on after that for 15 months, but not a word was ever said by the accused during that time about wanting to cross-examine P. W. No. 7. When they appealed to the Sessions Judge, in May, 1928, nothing was said about P. W. No. 7. In supplemental grounds of appeal put in 2 1/2 months later, it was represented that they were aggrieved by not having had an opportunity to cross-examine P. W. No. 7 again. Prosecution Witness No. 7 was a medical witness, who had been cross-examined at length before the charge was framed. It is unfortunate that the Magistrate did not make a note in the record that the accused dispensed with P. W. No. 7's further cross-examination. But I agree with the learned, Public Prosecutor that from the entries in the diary of the Magistrate from the failure of the accused to cross-examine P. W. No. 7 when he attended the Court on 16 December, 1926, from the fact that they began the examination of their defence witnesses without protest on 24 January, 1927, and from the fact that though they protested about over matters in the case and did their best to prolong it. They never suggested during the remaining 15 months before the trial ended that they had any grievance in regard P. W. No. 7 and the only reasonable inference is that they did dispense with his further cross-examination. It has been represented before me that they had a real grievance in the matter. I cannot believe it. I can only suppose that at a very late stage they have trumped up a sham grievance because some one has discovered that the Magistrate omitted to record the fact that they dispensed with the further cross-examination of P. W. No. 7. I find that the trial was not vitiated by any failure to give the accused an opportunity to cross-examine P. W. No. 7 after the charge was framed.