1951 (6) TMI 8 - SC - Indian Laws

Summary

Issues Involved:

1. Legality of the Magistrate's cognizance of the case.
2. Right to counsel under Section 340(1) of the Criminal Procedure Code.
3. Examination of the accused under Sections 209 and 342 of the Criminal Procedure Code.
4. Admissibility of evidence under Section 288 of the Criminal Procedure Code and Section 145 of the Evidence Act.
5. Validity of the conviction and sentence.

Detailed Analysis:

1. Legality of the Magistrate's Cognizance of the Case:

The appellant argued that the Magistrate had no power to take cognizance of the case on October 3rd, and that the depositions of the three eye-witnesses recorded on that date could not be received in evidence. This argument was based on Section 190 of the Criminal Procedure Code, which stipulates that cognizance of an offence can only be taken upon a report in writing by a police officer. The appellant contended that the police were not permitted to send an incomplete report as per Section 173(1) of the Criminal Procedure Code. However, it was held that the challan dated October 2nd, 1949, was in fact a complete report within the meaning of Section 193(1)(b) read with Section 173(1). The Magistrate took proper cognizance of the matter as the investigation was substantially complete except for minor formalities.

2. Right to Counsel under Section 340(1) of the Criminal Procedure Code:

The appellant contended that he was not afforded the opportunity to be represented by counsel when the Magistrate recorded the evidence of the three eye-witnesses. Although the appellant had the right to be represented by counsel under Section 340(1) of the Criminal Procedure Code, it was noted that the appellant made no complaint about this during subsequent proceedings and did not indicate any desire to engage counsel. The court emphasized that the right conferred by Section 340(1) does not extend to a right to be provided with a lawyer by the State, police, or Magistrate. The appellant must ask for a lawyer and engage one himself or through his relatives.

3. Examination of the Accused under Sections 209 and 342 of the Criminal Procedure Code:

The appellant argued that the Committing Magistrate did not examine him properly under Sections 209 and 342 of the Criminal Procedure Code. Section 342 requires that the accused be examined to explain any circumstances appearing in the evidence against him. The court found that the examination by the Committing Magistrate was on the whole fair and full for the purposes of a Committal Court, despite some shortcomings in the form of questions put. However, in the Sessions Court, the examination of the appellant was not in accordance with Section 342. The Sessions Judge merely read over the examination from the Committal Court and did not question the appellant about the evidence recorded in the Sessions Court. This was a grave defect that vitiated the trial.

4. Admissibility of Evidence under Section 288 of the Criminal Procedure Code and Section 145 of the Evidence Act:

The court found that the depositions of some witnesses examined before the Committing Magistrate were brought on record in the Sessions Court under Section 288 without the witnesses being confronted with their previous statements as required by Section 145 of the Evidence Act. This was particularly true for two of the three eye-witnesses, whose previous statements were not put to them in the manner required by Section 145. This failure rendered their statements inadmissible in evidence. The court preferred the reasoning that Section 288 makes previous statements substantive evidence only when all provisions of the Evidence Act, including Section 145, have been complied with.

5. Validity of the Conviction and Sentence:

Given the irregularities in the examination of the accused and the admissibility of evidence, the court concluded that there was a grave likelihood of prejudice against the appellant. The disregard of the provisions of Section 342 was so gross that it warranted setting aside the conviction and sentence. The court ordered a retrial de novo in the Sessions Court, treating the committal as good.

Conclusion:

The conviction and sentence were set aside, and the case was sent back to the High Court with a direction to order a retrial de novo in the Sessions Court. The judgment emphasized the importance of adhering to procedural requirements to ensure a fair trial.