SHEOSHANKAR DHONDBAJI MAHAR Vs. EMPEROR

JUDGEMENT

(1.) THIS case is an off-shoot of Sessions Trial No. 11 of 1938, King-Emperor v. Sitaram Balaji Gaikwad, popularly known as the Chitnis Park Case in which one Sitaram Gaikwad was convicted of attempting to murder one of the Ministers of the Provincial Government in March 1938. That case was tried in the Court of the Additional Sessions Judge, Nagpur, before whom the applicant Sheoshankar came to be examined as P.W.3 on 12th July 1938. In the course of his deposition he averred: I and my friend the accused got separated and I noticed that the accused was surrounded by a hostile crowd. I rushed to his help and while I was trying to lift him up, the dagger fell down from the inner pocket of my coat. I picked it up with my right hand and caught hold of the accused with my left hand. When the people caught hold of me when they saw dagger in my hand, I raised my hand. In the meanwhile I saw the City Superintendent approaching towards me and I then handed over the dagger to him.

(2.) THE Chitnis Park Case came up to the High Court on a reference by the Additional Sessions Judge and was heard by the Criminal Division Bench. That Bench was of the opinion that the aforesaid statement made by the applicant as P.W. 3 was false and in the interests of justice it considered it advisable to prosecute the applicant for the offence of perjury punishable under Section 193, Penal Code, and it directed a complaint to be lodged before a Magistrate having jurisdiction. Mr. Adhar Singh Bisen, Deputy Registrar (Judicial) in consultation with the Judges of the Bench settled the terms of the complaint and sent it to the Court of the Head Quarters Magistrate, Nagpur, who convicted the applicant of the offence of perjury and sentenced him to undergo rigorous imprisonment for six months. His appeal having failed he has moved this Court in revision. The conviction is vehemently attacked on several grounds of law. In the first instance it is contended that the complaint was invalid as it was filed by the Deputy Registrar without any appointment as required by Section 195(1)(b), Criminal P.C. This contention is of a highly technical nature and does not merit much discussion. The Deputy Registrar is the principal officer of the Judicial Branch of the High Court office. In that capacity he has to perform the requisite ministerial work in connexion with the judicial business of the High Court. He would therefore be deemed to be an officer appointed to file complaints as contemplated in Section 195(1)(b), Criminal P.C. The order of the Criminal Division Bench directed the complaint to be made. That order, by necessary implication, must be treated as having been addressed to the head of Judicial Branch of the High Court office.

(3.) NEXT , the attack is directed against the admissibility of the applicant's statement in the witness-box on the ground that the statement was not read over and interpreted to him in the presence of the accused in the previous criminal case as required by Section 360(1), Criminal P.C. It is not con-tended that the record of his deposition was in any way inaccurate or that it was not read over to him or that he had not admitted its correctness. The deposition of the applicant was read over and interpreted to him by the reader who was in the courtroom but was at some distance from the accused's dock and while he was reading over the deposition the other witnesses were being examined by the Court. The question is whether the applicant's deposition became inadmissible in evidence against him for the simple reason that it was not read over to him within the hearing of the accused. In support of this contention a number of authorities have been cited before me and they are Kamatchinathan Chetty v. Emperor ('05) 28 Mad 308, Mirabux v. Emperor ('23) 10 AIR 1923 Nag 39, Emperor v. Nabab Ali Sarkar ('24) 11 AIR 1924 Cal 705, Chenchiah v. Emperor ('19) 6 AIR 1919 Mad 45, In re Kuppa Mudaliar ('25) 12 AIR 1925 Mad 1206, Hira Lal v. Emperor ('24) 11 AIR 1924 Cal 889, Mahmad Yasin v. Emperor ('25) 12 AIR 1925 Cal 782, Jyotish Chandra v. Emperor ('09) 36 Cal 955 and Taj Mahmud v. Emperor ('28) 15 AIR 1928 Lah 125. These decisions, to the extent that they tend to support the applicant's contention must be regarded as having been overruled by the decision of their Lordships of the Privy Council in Abdul Rahman v. Emperor ('27) 14 AIR 1927 PC 44. Apart from this circumstance it would, on an analysis of these cases appear that the weight of judicial authority is by no means in favour of the contention in the form in which it is raised here. In Kamatchinathan Chetty v. Emperor ('05) 28 Mad 308 the evidence was read over by the clerk in a place where neither the Judge nor the pleader was present. It is not clear whether the place was outside or inside the court-room. The deposition of the witness was held inadmissible and the conviction founded on it was set aside.