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TMI Blog1932 (11) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, the learned Magistrate called upon the applicants to enter on their defence. The applicants examined some of the defence witnesses cited and gave up the others. The learned Magistrate however examined four out of those witnesses as Court-witnesses. The learned Magistrate also called two more Court-witnesses and examined them without further examining the accused and giving them any opportunity to rebut the aforesaid evidence. From the above it will appear that the provisions of Section 540 have been wrongly used and also that the learned Magistrate has failed to comply with the imperative provisions of Section 342, Criminal P.C. 2. It appears therefore that we are asked to deal with two distinct points of law. The first is: Has the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uce us to believe that the Magistrate has misused his discretion. Discretion by Section 540 is wide, but the section is not wholly discretionary. The last part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. If the learned Magistrate was of opinion that the evidence of these Khan Sahibs was essential, then the section imposes upon him the obligation of summoning them. Even if the evidence, though not essential, was yet expedient, then the Magistrate did not exceed his authority in putting these witnesses into the box. The first objection falls to the ground; we are not inclined to interfere in revision with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore be impossible to administer to him the judicial oath. It is further to be observed that throughout Ch. 8 the legislature has been careful to avoid the use of the word accused. 5. How studious the avoidance has been appears very clearly from a comparison of Section 117 with Section 208. In the one case the words are: when any person appears or is brought before a Magistrate under Section 114 the Magistrate shall proceed to inquire c. 6. In Section 208 the words are: The Magistrate shall, when the accused person appears or is brought before him proceed to hear, c. 7. It would plainly have been more natural in Section 117 to use the word the accused if it had been the intention of the legislature to regard a perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercising jurisdiction under the Code of Criminal Procedure, does not ipso facto become an accused. A recon sideration of the definition given in Queen-Empress v. Monu Puna (1892) 16 Bom 661, seems a necessary consequence of this amendment. It may be a matter for regret that the English language should not supply a single word, meaning a person not accused of an offence against whom proceedings are instituted. Such a person is called by the Canon law imputatus . The French Code calls him le prevenu. An English legislator is forced to make use of a periphrasis, but the meaning of that periphrasis is plain. For these reasons we are inclined to follow the High Court of Calcutta in doubting whether a person against whom proceedings are taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the provisions of Section 342, Criminal P.C., and no further examination of the accused is necessary. This being the law there is not here any such defect as would in itself be irremediably fatal to the proceedings. 11. There is however a rule of prudence which requires that before an accused is condemned he should have an opportunity of making any explanation he may have with regard to the circumstances appearing in evidence against him. In application of this general principle it has been held that when a witness called for the Crown has disclosed any fresh facts, or when the evidence that he has given affects the decision of the case, then it is desirable that the accused should be examined a second time. To decide whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieved by the first Court to be so strong and the defence evidence so unreliable that there was at that stage every justification to demand security; and that the evidence of the additional witnesses examined by the Court did not necessarily form a determining factor when the Court arrived at its final decision to demand security. I am however not inclined to accept this exposition as correct. Personally I have no doubt that after recording all the evidence that had been adduced by the police and the defence, the learned Magistrate did feel the necessity of some more, in the interest of justice; and hence it was he examined some additional witnesses who of course had to be treated as Court witnesses. He was perfectly justified in doing so. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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