P (PLP)

Abdus Salaam Khan, for Opposite‑Party. ELLIS, J.‑In this case a rule was issued on the District Magistrate of Dacca at the instance of one Ali Akbar who was substituted for his brother Ali Azam, in a proceeding under section 145 of the Code of Criminal Procedure, which was dis posed of by Mr. M. S. Mandal, a Magistrate of the 1st class of Dacca, on the 4th of January, 1950. The rule was issued on two grounds only. The first of these grounds is ground No. 2 which records: "For that the whole trial has been vitiated for non‑compliance of mandatory provision of section 360, Criminal Procedure Code, in as much as the depositions of the petitioner's witnesses Nos. 7 and 8 and those of the opposite party witnesses 1, 2, 3, 4 and 5 were not read over and admitted to be correct by those witnesses". And ground No. 5 is: "For that the order of cost of Rs. 370 to the second party is wholly bad as this question was not judicially determined upon proper materials and without giving any opportunity .to the petitioner to place his objection to the same". Mr. Talukdar has appeared before me on behalf of the peti tioner in this rule, and has claimed that the failure of the Magistrate to comply with the provisions of section 360 of the Code of Criminal Procedure has vitiated the whole trial. The petition claims that the depositions of the petitioner's witnesses Nos. 7 and 8 and those of the opposite parties' witnesses Nos. 1, 2, 3, 4 and 5 were not read over and admitted to be correct by those witnesses. It is true that there is no certificate appended to the evidence of those witnesses to show that the evidence was read over to them; but the absence of the certificate in itself does not show thel in fact the evidence was not read over. The matter however, is concluded by the pronouncement of their Lordships of the Privy Council in the case of V.

141. Abdul Rahman v. The King Emperor (31 C. W. N. 271) where their Lordships were considering the effect of a failure to comply with the provisions of section 360 of the Code of Criminal Procedure: "But even so their Lordships cannot accept the reasoning in that case, and they are of opinion that though it is regrettable that such an irregularity should creep in, and though it might be taken into account with other elements (if such there were) of objection to the satisfactory character of a trial it would not by itself be ground sufficient for quashing a conviction." "If, indeed, it were shown that the omission did lead or even with probability might have led to some material error in the depositions not being checked, the case would be otherwise." In the present instance it is not alleged in the petition that was filed before this Court that there was any material error in the deposition of any of these witnesses. It is not alleged that even if the evidence was read over, it might have led to some material error being detected. The only point that has been taken is that the evidence was not read over, and that by itself has vitiated the whole trial. The observation of their Lordships in the case under report shows that by itself this is not sufficient either for quashing a conviction, or, pari passu, for setting aside an order under section 145 of the Code of Criminal Procedure. With regard to the second ground I see no reason at all to interfere with the discretion of the Magistrate in the costs he has awarded to the second party. It may perhaps not be without point to observe that the party which is protesting at the award of Rs. 370 as costs, itself put in a claim for Rs.

850. There is thus no substance in either of the grounds on which this rule was issued. The rule is accordingly discharged. A. H. Rule discharged.