NISAR AHMAD Vs. EMPEROR

JUDGEMENT

(1.) This is a petition for revision of an order of the Sessions Judge of Bhagalpur upholding a conviction of the-petitioner by a Magistrate of the First Class, of an offence under Section 14(a), Dangerous-Drugs Act. The petitioner was convicted under that Section and sentenced to two years rigorous imprisonment. The facts of the case are straightforward and simple. The police had received certain information and consequently a number of police officers obtained the assistance of one Bhaglu Ram to approach the petitioner with a view to purchasing from him cocaine. Bhaglu Ram was given two marked rupees, and he and another person Baiju Ram went to the petitioner's house and purchased from him a phial of white powder for Rs. 2 which they handed over to the petitioner. The police who were keeping watch came up, arrested the petitioner, and upon searching, his person found the marked rupees. The contents of the phial were analyzed, and it was found that it contained cocaine. No. argument has been addressed to us upon the findings of fact; but it has been strenuously urged that during the course of the proceedings before the trial Magistrate a grave illegality was committed which renders the conviction illegal.

(2.) After a number of prosecution witnesses had been examined, the Magistrate framed a charge and to that charge the present petitioner pleaded not guilty. He was then asked by the Magistrate whether he desired to cross-examine the witnesses, and his answer was in the negative. He however stated that he would call defence witnesses, and the case was adjourned to another date. Upon that date the defence witnesses did not put in appearance and later the petitioner stated that he would call no evidence. At that hearing some other witnesses were also examined by the Court, and the petitioner stated with respect to these witnesses also that he did not desire to exercise his right of cross-examination. The procedure to be followed by a Magistrate in relation to cross-examination is set out in Section 256, Cr. P.C., which is in these terms: If the accused refuses to plead, or does not plead or claims to be tried, he 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 cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged....

(3.) In the present case the Magistrate, purporting to act under this Section, asked the petitioner immediately after the charge was framed whether he desired to cross-examine the witnesses. This the Magistrate was entitled to do in a proper case; but it is to be observed that if it is done immediately after the charge is framed, the Magistrate must record his reasons for asking the accused forthwith. In ordinary cases the question should be asked at the commencement of the next hearing; but Section 256, Criminal P.C., undoubtedly entitles the trying Magistrate to ask the question immediately after the charge is framed provided the Magistrate gives his reasons for so doing. In the present case the Magistrate called upon the petitioner forthwith to say whether he desired to have any of the prosecution witnesses cross-examined; but unfortunately the Magistrate has not recorded his reasons for so doing. It has been argued that this failure by the Magistrate to record his reasons is an illegality which vitiates the whole of the proceedings thereafter. Had the Magistrate failed to ask the petitioner whether he wished to cross-examine the prosecution witnesses, such would have been a very grave matter. However in the present case the petitioner was asked whether he wanted to cross-examine any witness and further the petitioner made it clear that he did not wish to do so. The most that can be: said in this case is that the Magistrate failed to comply strictly with the terms of the Section in that he did not record his reasons for asking the petitioner forthwith whether he wanted to cross- examine the witnesses or not.