P L D 1954 Dacca 129 (PLP)

ELLIS, J.

‑In thin case a Rule was issued on the Deputy Commissioner of Sylhet at the instance of Abdul Mannan who, at the material time, was a Sub‑Account Clerk of the Sylhet Branch Post Office. He was placed on trial before Mr. M. A. Jalil, Assistant Sessions Judge of Sylhet, on a charge under section 52 of the Post Offices Act. He was convicted on the 29th of September 1951, was sentenced to rigorous imprisonment for two years, and was also sentenced to pay a fine of Rs. 700 in default to rigorous imprisonment for six months. His appeal to the Sessions judge was dismissed by Mr. Velayet Hossain on the 21st of December 1951. The conviction was upheld but the sentence of imprisonment was reduced to one of rigorous imprisonment for one year and to a fine of Rs. 300 in default to rigorous imprisonment for three months. The petitioner thereafter moved this Court in the exercise of its Criminal Revisional Jurisdiction and obtained the present Rule. Mr. Abdul Hye has appeared before us on behalf of the petitioner, while the Crown has been re presented by Mr. Salahuddin Ahmed, the Deputy Legal Remembrancer. Mr. Abdul Hye has drawn our attention to three para graphs of the petition which he filed before this Court. 'Paragraph 9 is in the following terms: "That the accused was tried by Mr. Mahmud in G. R. Case No. 30 of 1949 under section 52 of the Post Offices Act and he by his order, dated 27th August 1949, convicted the petitioner under section 52 of the Post Offices Act and sentenced him to rigorous impri sonment for 6 months and a fine of Rs. 1,000 in default rigorous imprisonment for four months. In that trial Paresh Chandra Choudhury, the Post Master of Khurma Post Office was examined as a prosecution witness on 21st May 1949, and cross‑examined on 6th June, 1949, and Wasid Ali also was examined as a prosecution witness." Paragraph 15 states: "That the trial began and after examination of witness No. 1 the Court rose for midday recess and came back again and waited till 3‑15 p.m. but Assessor Maulvi Hazi Abdul Latif did not turn up. Thereafter the Court proceeded and concluded the trial with the aid of 2 Assessors only and of the 2 Assessors one gave a verdict of not guilty and the other, verdict of guilty." Paragraph No. 18 states: "That the offence under sec tion 52 of Post Offices Act being punishable with a sentence of 7 years is exclusively triable by the Court of Sessions and the 1st trial by Mr. Mahmud, a Magistrate of the 1st Class was a trial without jurisdiction and the evidence recorded by him of Paresh Chandra Choudhury who was subsequently made an accused in the subsequent trial or, enquiry and that of Wasid was not recorded in course of judicial proceeding. That the learned Assistant Sessions Judge admitted the de position of Paresh Chandra Choudhury and Wasid Ali recorded by Mr. Mahmud the 1st Class Magistrate under sec tion 33 of the Evidence Act". In support of his first ground, Mr. Abdul Hye has drawn our attention to section 285 (1) of the Code of 'Criminal Pro cedure. That section provides: "In the course of trial with the aid of Assessors, at any time before the finding, any Assessor is, from any sufficient cause, prevented from attend ing throughout the trial, or absents himself, and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other Assessor or Assessors." In the present case as the order‑sheet of the record shows: "Eight Assessors were summoned in this case: out of these eight Assessors only Maulvi Hazi Abdul Latif is found present in Court. To make up the deficiency in the number of Assessors (1) Maulvi Amirulla, (2) Maulvi Mahamadul Haque Choudhury, and (3) Maulvi Abdur Rahim Choudhury were selected and summoned and out of these three Assessors Maulvi Amirullah and Maulvi Mahamadul Haque appeared in Court After Namaj the Court took its seat and waited till 3‑15 p.m. but Assessor Maulvi Hazi Abdul Latif did not turn up. As he absented himself willfully the Court proceed ed with the aid of other two Assessors and examined P. W. 2 Dinesh Chandra Purkaistya . . . . . ." Mr. Hye relies onl the case of Baddan v. Emperor (A I R (33) 1946 All. 253) where Sinha, J. with whom Bennett J. agreed, observed: "It was, no doubt, open to the learned Sessions Judge to continue the case with the aid of the remaining two Assessors. But the section makes it clear that he ought to have ascertained whether the absence of Fateh Mamoor Khan was due to sufficient cause. The judgment does not show what prevented Fateh Mamoor Khan from attending the Court and whether the learned judge considered that his absence was due to sufficient cause within the meaning of the law. All that the order‑sheet shows is that he was not present. It also does not show that the learn ed Judge took any steps which were practicable to enforce the attendance of Fateh Mamoor Khan. We think that this was a material irregularity which has vitiated the trial of the accused." Mr. Hye claims that there is nothing in the order, sheet of the present case to show what steps were ever taken by the learned judge in order to enforce the attendance of the absentee Assessor: The case of Baddan v. Emperor (supra) was followed by a decision of this Court, in Kasem Ali Mira v. The Crown (P L R 1 Dacca 589.=P L D 1952 Dacca 253) where it was held that "Where no attempt is made by the learned judge to enforce the attendance of the absenting Assessor and where it is not shown that the absence of the Assessor was due to a `sufficient cause' within the meaning of section 285 (1) of the Criminal Procedure Code the failure to comply with the procedure is material irregularity which vitiates the trial." The view thus enunciated is open to certain difficulties, the first of which is that the, Code itself makes no provision whatever for enforcing the attendance of an absentee Assessor Just how a Court is to enforce the attendance of an absentee Assessor, it is difficult to understand and it is also difficult to understand what the section means when it speaks of it not being "practicable" to enforce the attendance of such an Assessor. There is also difficulty in holding that the failure to take practicable measures to enforce the attendance of art absentee Assessor, is material irregularity vitiating the trial. If it was so, it is difficult to see how the Court is to proceed with the trial with the aid of the other Assessor or Assessors, and the section, it will be noticed, states that the trial shall proceed. It does not state that the trial may proceed nor does it say that the trial shall proceed after any interval. In fact, the use of the word "proceed" means that the Court shall, then and there go on with trial. It is, however, not necessary for me to record any specific finding on this point in view of our acceptance of the second argument of Mr. Abdul Hye which necessitates a retrial. Mr. Abdul Hye has pointed out that in schedule II of the Code of Criminal Procedure which prescribes the proper Court to try offences against other laws, item No. 1 speaks of offences punishable with death, transportation or imprison ment for 7 years or upwards. Item No. 2 speaks of offences punishable with imprisonment for 3 years and upwards, but' less than

7. It follows, therefore, that if an offence is punish able with imprisonment which extends up to seven years then that offence fills within item No. 1 and is triable exclu sively by the Court of Sessions. Section 52 of the Indian Post Offices Act prescribes the punishment for an offence such as is contemplated in the present case, the offence shall be punishable with imprisonment for a term which may extend to seven years, and shall also be punishable with fine. It follows, therefore, that the offence with which the petitioner was charged was an offence which was triable exclusively by the Court of Sessions. Iii this view of the matter, Mr. Abdul Hye has drawn our attention to two cases, of Sankappa Rah and two others v Koraga Pujary and others (I L R 54 Mad. 561.), where their Lordships held that "A proceeding before a Court which has no jurisdiction to entertain it is not a judicial proceeding' within the meaning of section 33 of the Indian Evidence Act, and a deposition given in such a proceeding is inadmissible if, evidence under the section." This view of the law was also taken by the Lahore High Court in the case of Buta Singh v Emperor (A I R 1926 Lah. 582.), where their Lordships held that "A proceeding before a judge or Magistrate who has no jurisdiction is coram non judice and the evidence of witnesses given in such a pro ceeding cannot be used under section 33 on a retrial before a "competent Court". There is, of course, no answer to this argu ment of Mr. Hye and it must be held that the depositions of the two witnesses, Paresh Chandra Choudhury and Wasid Ali could not legally be put in the Court of Sessions Judge under section 33 of the Evidence Act. On a scrutiny of the record, it appears that it was left to Mr. S. M., Bakhsh, the Magistrate who committed the petitioner for trial before the Court of Sessions on the 23rd of August 1951, to realise that the case was one triable exclusively by the Court of Sessions. Up to that time apparently the Courts, did not bother to con sider whether the case could be tried only by the Court of Sessions or whether a Magistrate of the 1st Class, had jurisdic tion to deal with it. In these circumstances, we must give effect to the, argu ment of Mr. Abdul Hye that the depositions of these two witnesses were illegally brought on the record. In the circumstances, the Rule is made absolute and the conviction and sentence set aside and we direct that the petitioner be retried on the charge. The petitioner may remain on bail pending his ISPAHANI, J

‑I agree with the order passed by my learned brother. A.H. Rule made absolute.