P L D 1962 Dacca 334 (PLP)

This salutary principle laid down by our Federal Court must to strictly complied with in all trials in this country. In a Division Bench case of Kalipada Kumar v. The King? Emperor (45 C W N 1045) it was held that where the trying Magistrate, arbi?trarily fixes a brief period for the completion of defence argument and no argument on behalf of the defence is advanced, the conviction and sentence must be set aside there being no proper trial in the case. It was further held that the fact that the arguments were advanced in the appellate Court did not rectify the defect. This point also came up for consideration by their Lordships of the Privy Council in the case of Galos Hirad and another v. The King (A I R 1944 P C 93). That was a case from Somaliland where Poor Persons Defence Ordinance provided that an accused in a capital sentence case was entitled to have a lawyer `assigned to him'. It speaks no more than assigning of a lawyer. Section 340 of the Code speaks of the right of being defended by a lawyer. The right to have a lawyer 'assigned to him' has been construed to be a right to be heard through a lawyer. On that analogy, it can certainly be said that the words 'right of being defended by a pleader' occurring in section 340 of the Code speak of a right of being heard though a lawyer or making arguments. In the case just cited, although hearing was given in the Court of Appeal, the following observa?tions of their Lordships indicate that for such a denial in the trial Court, the conviction and sentence cannot stand ; "Just as a conviction following a trial cannot stand if there has been a refusal to hear the counsel for the accused, so an appeal cannot stand where there has been a refusal to adjourn an appeal in which the appellant was entitled as of right to be heard by a counsel assigned to him by the Govern?ment who was unable, without any default on his part to reach the Court in time to conduct the appeal." After having stated the position, in law on this point, I now proceed to deal with the view of the learned Judge that no argument having been offered, there has been no prejudice to the accused. It is to be noted that the learned Judge does not say that an argument was in fact advanced, what he says is that no arguments were offered. If an accused person does not avail himself of the opportunity afforded to him for making an argument in his favour it is undoubtedly correct to say that the accused cannot make any grievance of his being prejudiced in this behalf‑But when such a point is raised, it is a duty of the Court of Appeal to find out what actually happened in the case. Although he says that no arguments were offered, I find reference to arguments in the following passage in the judgment of the trying Magistrate: ‑ "Defence argued that no money was found with the accused and that there was another man with the accused. If any body is responsible for the theft of the ten‑rupee notes of P. W. 1, it is that man who could not be traced. This argument is simply futile in face of the broad facts and circumstances of the case proved." In the petition presented before this Court the ground taken on this point is as follows: ‑ "For that inasmuch as no arguments for the defence could be heard in the trial Court, the trial was no proper trial and the conviction and sentences are liable to be set aside." ??????????? In response to the rule Issued in this case no explanation has been given by the Magistrate in this respect except what is stated in the judgment. The learned Magistrate ought to have applied his mind to this ground, which makes a specific grievance about the trial, which took place before him and as such it was expected of him that he would give definite information on this point specially when the order‑sheet is silent about it contrary to usual practice. In view of what is stated in the passage quoted from the judgment of the trying Magistrate, I am, however, unable to say, as the learned Judge has done, that no arguments were offered. The indication in the judgment is that arguments were in fact heard and the question of prejudice on this account therefore does not arise. Mr. Sultan has also argued that in this case an inference adverse to the prosecution must be drawn owing to non‑examina?tion of at least two persons viz., the police constable who according to prosecution appeared in the scene as soon as the petitioner was caught hold of by P. W. 1 and others and the Station Master to whom the petitioner was taken immediately after occurrence. In support of his submissions founded on the provisions of section 114 (g), Evidence Act, Mr. Sultan makes an analysis of the prosecution evidence already led in the case and argues that in view of the presumption of law as contem?plated in the said section 114 (g) of the Act, it will not be safe to convict the petitioner. In this connection he argues that of the prosecution witnesses examined in the case P. W. 1 is the Cooly Sardar against whom there is an allegation of enmity although denied, P. W. 2 is the informant and P. W. 3 is his son, P. Ws. 4 and 5 are not named in the first information report. He makes a serious grievance that P. W. 1 is not mentioned in the First Information Report although he is attributed to have taken an active part in seizing the petitioner who fell on him and P. W. 2 informant deposes to that effect. Mr. Sultan contends that if his evidence would be correct, he would have certainly mentioned about P. W. 1 in the F. I. R. and on this ground the learned Advocate severely attacks the reliability of P. Ws. 1, 4 and

5. The learned Advocate further argues that P. W. 6 is the investigating officer and that being the entire prosecution evidence led in the case it is unsafe to convict the petitioner owing to non‑examination of important witnesses who took definite parts in the matter according to the prosecution. On perusal of the evidence, I find that the Station Master is really mentioned by P. W. 2 as the person to whom the petitioner was taken immediately after he was caught hold of. It is also in evidence that he made some notes then and there. But the prosecution has not examined him. The Station Master is the officer who is in charge of the station where the incident is alleged to have taken place. The following evidence of P. W. 2, the informant may be noted: ‑ "Then myself and my son also seized him. One constable and many public came. We told them about the occurrence. Con?stable took the accused to the office of the Station Master and we followed." With regard to the grievance of non‑examination of the constable and the Station Master, the deposition of the P. W. 5 may also be quoted. "I found S. M., one or two police constables and a few others were present. S. M. noted something after questioning the accused." The following statement appearing in the evidence of P. W. 6, the investigating officer is relevant for the purpose. "I examined S. M. Gouripur, Kamdar Fakir and some other railway staff'." No explanation has been given by the prosecution for non-?examination of the Station Master who made notes soon after occurrence, the constable who appeared at the place of occurrence as soon as the petitioner was seized and of Kamdar Fakir who had accompanied the informant to the railway police station. Their Lordships of the Privy Council have observed as follows in the case of Stephen Seniveratne v. The King (A I R 1936 P C 289): "Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testi?mony is for or against the case for the prosecution." In this case even leaving Kamdar Fakir out of consideration, two persons, the Station Master and the Constable are indeed material witnesses and ought to have been examined, and for non-?examination of these two persons, the Courts below ought to have drawn an inference adverse to the prosecution and the failure to do so has seriously prejudiced the petitioner and in view of this vital omission, the order of conviction and sentence cannot be maintained. With regard to the question if this case should go back on remand, it has been argued that the evidence being that the informant had set out with a sum of Rs.380 the balance of the amount after the alleged theft of Rs. 100 ought to have been seized. That would have corroborated the statement of P. W. 2 in this respect. Then again it is the prosecution case that the petitioner had a lamp in his hand when he fell down after only proceeding about 70/80 cubits. This lamp has neither been seized nor produced. The learned Advocate has also argued that it was highly improbable that having been approached by a total stranger the informant would bring out ten Ten‑Rupee Notes from his pocket. In view of these omissions and in the facts and circumstances of the case, it has been rightly contended that his case should not be sent back for retrial. ? In the result the Rule is made absolute. The conviction and sentence are set aside. The petitioner is discharged from his bail bond. S. D./A. H. Rule made absolute: Conviction set aside.