P (PLP)

Criminal Procedure Code (V of 1898)

S. 356‑Now compliance with‑Material error‑Proceedings to be set aside. I L R 42 Cal. 381 and 20 Weekly Reporter 14 relied on. ORDER.‑--One Allah Diwaya brought a complaint under section 494 Indian Penal Code against Ramzan, Abdur Rahman and Mst. Noor Ilahi wife of Abdur Rahman. The allegations were that Mst. Faiz Ilahi daughter of Abdur Rahman and Mst. Noor Ilahi was his lawful wedded wife. She was taken away one day from his house by her parents who against her wishes married her to Ramzan. She however escaped from the house of Ramzan and came back to Allah Diwaya. The Magistrate recorded preliminary evidence. Part of the preliminary evidence was recorded in the Court of Mr. Ghulam Muhammad Durrani and by some of his Ahlkar. The case then went in the hands of Mr. Muhammad Ayub, when further evidence was produced and it was recorded by him. He summoned the respondents under section 347 Pakistan Penal Code. Abdur Rahman presented a revision petition to the learned Sessions Judge in which he attacked the order of the Magistrate to summon him and other respondents under section, 3,47, Pakistan Penal Code, and further contented that there was' no case even under section 494 against them and at any rate the proceedings were liable to be set aside as the evidence was not recorded by the Magistrate himself. The learned Sessions Judge recommended the revision to be accept ed on the ground that the respondent ought to have been summoned under section 494, Pakistan Penal Code, and riot under section 347, Pakistan Penal Code. He, therefore, sent up the case to the High Court for setting aside the order of the Magistrate and substituting an order to summon the respondents under section 494, Pakistan Penal Code. I shall take the advantage to point out to the learned Sessions judge that in every recommendation in the revision petition to the High Court the facts of the case should be properly stated and then the reasons. The present is an instance of several such cases which have come before the High Court in which this pro cedure is not adopted and only a laconic order is recorded. Besides this Abdur Rahman had challenged the proceedings in the trial Magistrate on the ground that Mr. Durrani had not followed the provisions of section 346, Criminal Procedure Code. The record shows that the evidence recorded in the complaint during his time was not written in his hand, but in the hand of some subordinate Ahlkar. This is seriously condemnable. Mr. Muhammad Ayub no doubt had complied with the provisions of that section but his order does not show that it was exclusively based on the evi dence written by him and he did not take into consideration the evidence written in the Court of Mr. Durrani, In the absence of this indication the conclusion would be that he took into consideration the evidence written while the case was in the hands of Mr. Durrani. Mr. Durrani did not comply with the provisions of section 356 of the Criminal Procedure Code which are imperative in their nature. Section 356, clauses 1, 3 and 4 read:‑-- Section 356 (1). In all other trial before Courts of Sessions anti Magistrates and in all inquiries under Chapters XII and XVIII the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate or Sessions judge. (3) In cases in which the evidence is not taken down in writing by the Magistrate or Sessions judge he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes .and such memorandum shall be written and signed by the Magistrate or Sessions judge with his own hand, and shall form part of the record. (4) If the Magistrate or Sessions Judge is prevented from making he shall record the reason of of this section are imperative and its non‑compliance cannot be condoned. Further on the Magistrate failed to comply ‑ with the provisions of subsections 3 and 4 of this section. It has also been held in 20 Weekly Reporter 14 that where a Magistrate omitted to record the evidence in the mode prescribed by this section it was a material error sufficient to set aside the proceedings. As the order of the Magistrate does not show that he did not take into consideration the evidence recorded during the time of his predecessor consequently the order of Mr. Ayub is not sue tamable. I would, therefore, accept the petition for revision bit on different grounds and set aside the order of Mr. Ayub sum moning the respondents under section 347, Pakistan Penal Code, and would direct that the preliminary evidence be recorded afresh by his successor to whom the file go and a proper order then be passed. The complainant a on shall appear in the Court of Malik Nazir Ahmad on 6th August 1950 to whom the complaint is sent back. K.M.A. Petition accepted: