BHAJJA Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision by the Local Government against an appellate order passed by the learned Sessions Judge of Cawnpore on 9 July 1938. One Bhajja was convicted of the offence of theft and sentenced to rigorous imprisonment for the period of six months. He appealed to the learned Sessions Judge who did not hear the appeal upon its merits but set aside the conviction and sentence and ordered a retrial upon the technical ground that the Magistrate had made a mistake in procedure during the course of the trial. The witnesses for the prosecution were examined upon 6 June. On the same day the statement of the accused was taken and a charge was framed, read out and explained to the accused who pleaded not guilty. The Magistrate then adjourned the case to 7th June and on that date he asked the accused whether he wished further to cross- examine the witnesses for the prosecution. The accused said that he did not wish to examine them further. The learned Judge thinks that the Magistrate did not comply properly with the provisions of Section 256, Criminal P.C. That Section says that the accused if he refuses to plead to the charge or does not plead or claims to be tried shall be required to state at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken.

(2.) The learned Sessions Judge says that he cannot agree that the provisions of the law were satisfied by taking up the case on the day following the day on which the charge was framed for the express and sole purpose of asking the accused whether he wished to cross-examine. I can see no force in the learned Judge's contention and this contention does not appear to be supported by any authority. The word hearing is not defined anywhere in the Criminal Procedure Code. It seems to me that the intention of the law was that the Magistrate should adjourn the case, after framing the charge and recording the plea of the accused, to a later date so that the accused might have time to consider whether he wished further to examine the witnesses for the prosecution. I cannot see why it should be considered that the proceedings on the adjourned date are not a hearing merely because no other action is to be taken on that date. The learned Judge thinks that the question must be put to the person accused on a date which is fixed for some other purpose. That other purpose might be the examination of further witnesses for the prosecution or the examination of witnesses for the defence or the hearing of arguments and the delivery of judgment. In the first case, no great harm would perhaps be done if the question about cross-examination was put to the accused on the date when the other witnesses for the prosecution were to be examined. In the second case I think it would be unfair to the witnesses for the defence to require their attendance when it might well be that there would be no possibility of examining them. If the person accused expressed his intention of cross- examining; the witnesses for the prosecution the evidence of the defence could not be taken-until that cross-examination was completed. It also seems to me that it would be somewhat anomalous to fix a date for the production of witnesses for the defence before ascertaining whether the person accused wished further to cross-examine the witnesses for the prosecution. According to the provisions of Sec 256, Criminal P.C., the accused shall be called upon to enter upon his defence and produce his evidence only after the witnesses for the prosecution have been examined, cross-examined, re-examined and discharged. That being so, it seems that it would be improper for a Magistrate to require the person accused to summon his witnesses in defence until it had been ascertained whether further cross-examination of the witnesses for the prosecution was necessary.

(3.) On general principles apart from the wording of the Section it seems to me that a person accused might well have a grievance if he were required to summon witnesses for the defence before he had decided whether he would further cross- examine the witnesses for the prosecution. If he did so desire and if the cross- examination disclosed that there was no case against the person; accused, it would not be necessary for him to incur the expense and trouble of summoning witnesses in defence. Far from agreeing with the learned Sessions Judge I am rather inclined to think that the procedure followed by the Magistrate was the only procedure strictly in consonance with, the provisions of Section 256, Criminal P.C.