P L D 1957 Dacca 327 (PLP)

Nemo for the Crown. RAHMAN, J.‑

This application in revision is directed against an appellate order of the Senior Deputy Magistrate, Jessore, setting aside the conviction and sentence of the accused, and directing that he be set at liberty. The accused was charged under section 354 of the P. P. C. for having used criminal force against a woman intending to outrage her. He was tried by the Magistrate Second Class, Narail, who after examining six prosecution witnesses, an equal number of defence witnesses, as also a Court witness, and upon the consideration of their evidence came to the view that the offence had been proved beyond reasonable doubt, convicted the accused and sentenced him to pay a fine of Rs. 200, in default, to suffer rigorous imprisonment for 4 months. An appeal was preferred from this order to the Senior Deputy Magistrate of Jessore, who without entering into the merits of the prosecution case, upheld the contention of the appellant that since the provisions of sections 360 and 342 of the Code of Criminal Procedure had not been complied with, the whole trial had been vitiated, and, therefore, consi dered it useless to enter into other questions on merits. Having taken this view the learned Senior Deputy Magistrate did not consider it desirable to send the case for retrial but acquitted the accused person. I have examined the record of the depositions of the witnesses recorded by the Magistrate, and find that no endorsement, as is customary, appears thereon to show that the depositions as recorded were read over and explained to the witnesses or were signed by them; except for the deposi tion of P. W. 2 in whose case only a signature purporting to be the signature of the said witness appears on the first page of the recorded deposition. But here also there is no endorse ment that the evidence was read over and explained to the said witness. As for the examination under section 342 of the Code of Criminal Procedure all that the Magistrate concerned asked the accused was as follows: "Q. You have heard the prose cution evidence and cross‑examination, what is your defence 7 A. I am innocent." It is apparent from the above that the learned Senior Deputy Magistrate was right in saying that there had not been due compliance with the provisions of either section 360 or section

342. But Mr. Sayem, the learned Advocate appearing on behalf of the petitioner, contends that the Senior Deputy Magistrate was entirely wrong in taking the view that these were illegalities, which could not be cured, and, therefore, the entire trial should be taken to have been vitiated. According to the learned Advocate the non‑compliance with the provi sions of section 360 of the Criminal P. C. is, at worst, an irre gularity, and unless such irregularity had occasioned a failure of justice the order and sentence passed by the trying Magistrate could not be reversed or altered. The order of conviction and sentence passed against the accused person by the trial Court should, in the present case, have been maintained, and the irregularity. if any, held to have been cured under section 537, Criminal P. C. In support of this contention the learned Advocate has relied upon the decision of the Judicial Committee in the case of Abdur Rahman v. The King Emperor (54 I A 96), and as also on a decision of the Supreme Court of India in the case of Bhagwan Singh v. The State of Punjab (1952 S C A 513). There can be no doubt that this part of the learned Advocate's contention is sound, and it must be accepted. The decision of the Judicial Committee of the Privy Council, cited by him, set, at rest any question of doubt that there might have been with) regard to this matter, and the Rule is now well‑settled that non‑compliance with the provisions of section 360 is only an' irregularity and not an illegality which cannot be cured under section 537 of the Code of Criminal Procedure. I would like also to notice here another part of the learned Advocate's contention in this connection. He further urged that the question as to whether the depositions had been duly read over and explained to the witnesses could only be raised if the applicant clearly raised it in his affidavit and showed in what material respect the omission had prevented the witness from correcting his deposition, and how the same had caused prejudice. With regard to this, I should like to point out that the observations in both the above decisions of their Lordships of the Privy Council and of the Supreme Court of India, which tend to support this contention, should be read in the light of the facts of those cases. In both those cases, it appears, that the usual endorsement that the deposition had been read over and explained was duly recorded on the deposi tion itself, but notwithstanding such endorsement, in those cases, the question was raised specifically upon an affidavit that the presumption raised by the endorsement was not correct, and there had been in fact, an omission to read over and explain the depositions. It was in those circumstances that their Lordships took the view that since the endorsement was there the presumption under section 80 of the Evidence Act applied, and the endorsement must be taken to be true unless the contrary was established. Where, however, the record itself does not disclose that the deposition has been read over and explained, the presumption, in my view, does not attach, and in such a case, I do not agree with the learned Advocate that it would be incumbent upon the person complaining of the non‑compliance to raise this question expressly upon an affidavit or to show in what material respect the omission had prejudiced him. With regard now to the non‑compliance with the provi sions of section 342, Criminal P. C. the learned Advocate has relied upon the latest decision of their Lordships of the Federal Court of Pakistan to show that non‑compliance with these provisions also is an irregularity, though of a graver kind, but nevertheless one which could be cured under section 537, Criminal P. C. Indeed, it was held in the case of Abdul Wahab v. The Crown (P L D 1955 F C 88), by their Lordships, that because the accused was literate, and could very well follow the nature of the proceedings against him, and was also aware of the prosecution case there had been no miscarriage or failure of justice by, the provisions of section 342, Criminal P. C. having not been strictly complied with. In this case their Lordships also indicated that where the only ques tion put to the accused under section 342, Criminal P. C. was; "You have heard the evidence, what is your defence 2"; this was hardly sufficient to meet the requirements of section 342. 1n the present case the question put under section 342, as I have already indicated above, was similar, and, therefore, in my view, the Senior Deputy Magistrate was justified in saying that there had been no compliance with the provisions of section 342; but having come to that view, it is clear from the authorities, to which I have referred above, that it was incum bent upon the learned Senior Deputy Magistrate to enter into the question as to whether this had or had not occasioned any failure of justice. If there bad, in fact, been a failure of justice then and then only would he be entitled to make the order of acquittal. In so far as he has failed to do so he has failed to exercise the jurisdiction that was vested in him in accordance with law, and acted with material irregularity in the disposal of the appeal. His appellate order, therefore, cannot be maintained. In this view of the matter, I set aside the order of acquittal passed by the Senior Deputy Magistrate on the 3rd March 1955, remand the matter, and direct that the appeal be reheard by some other competent Magistrate who will consider whether the non‑compliance with the provisions of sections 360 and 342 has in fact occasioned any failure of justice, and also dispose of the, appeal according to law. Before parting with this case, I would like to indicate that normally I would be loath to interfere with an order of acquittal at the instance of a private individual even though such an order has been made on an erroneous view of the law, but, in the present case, the circumstances are such that I feel that the ends of justice demand that the appeal should be reheard. K. B. A. Appeal remanded.