EMPEROR Vs. PERCY HENRY BURN

JUDGEMENT

(1.) We do not call upon the learned Advocate-General to reply upon these appeals from the order of convictions and sentences made by the Chief Presidency Magistrate of Bombay.Since the last hearing of the appeals on Thursday, we have had ample time to go through and carefully consider the full arguments addressed to us in support of the appeals both by Mr. Branson and Mr. Binning and we have arrived at the conclusion that the judgment of the learned Magistrate under appeal must be confirmed.

(2.) At the outset I should notice a legal argument urged by both of the learned Counsel. They complained that contrary to law the Magistrate had allowed the prosecution, after the charges had been framed against the accused and they had made statements, to examine fresh witnesses, who had not been named originally and summoned, as required by Clause 2 of Section 252 of the Code of Criminal Procedure. This procedure, it was contended, was a direct violation of the terms of Section 256 of the Code, which provides that after the charge has been framed and the accused has pleaded not guilty, "the evidence of any remaining witnesses for the prosecution shall next be taken." According to the learned Counsel, "any remaining witnesses" must refer only to those who, as required by section, 252 Clause 2, have been named by the complainant and summoned by the Magistrate before the framing of the charge. I do not think that the expression in question is necessarily limited to those witnesses. It is wide enough to include any witness who, according to the prosecution, is able to support its case, though he has not been summoned, provided, of course, that he is not sprung upon the defence all of a sudden and sufficient opportunity is given to the latter to prepare for the cross- examination of the witness.

(3.) In the present case the witnesses complained of as having been examined contrary to law were allowed to be examined after the accused had made their statements and the charges had been framed on the 26 of June; but it was all before the accused were called upon to enter upon their defence. There was no illegality in the procedure. I cannot even say that it was irregular, but even if it were, the irregularity has not been shown to have in any way prejudiced the appellants. The witnesses examined were allowed to be cross-examined at length and it was open to the appellants to adduce evidence to rebut their testimony.