P L D 1967 Dacca 542 (PLP)

Mr. Abu Hussain Sarker, learned Advocate appearing for the opposite‑party in his usual frankness agrees with the conten tion of Mr. Ismail that the prayers in all the three petitions ought to have been considered and these material witnesses should have been summoned, but strenuously argues that irregularity, if any, is cured by reason of section 537 of the Code of Criminal Procedure inasmuch as the petitioner has not been prejudiced by this omission on the part of the Magistrate. It is indeed somewhat surprising that a Court of law received three petitions but made no order on the same although all the three petitions were endorsed with the letters V. O. S. A court of law is to dispose of an application presented before it. It is a duty cast on it to consider a petition and exercise its discretion without waiting to be reminded by the petitioner as suggested by Mr. Sarkar. As I have already found that the witnesses sought to be summoned were material witnesses, it cannot be said that the petitioner has not been prejudiced. Next point urged on behalf of the petitioner is that the Magistrate has recorded the evidence of the witnesses of the 1st party in actual words used by them. But he has recorded the evidence of the witnesses of the 2nd party in the form of memorandum as permissible in summons cases under section 355 of the Code of Criminal Procedure. It has been rightly claimed by Mr. Ismail that it has been done in clear contravention of section 356 of the Code and that there has been no fair trial as the Magistrate's action indicates discrimination between the two parties in the matter of recording evidence. Subsection (1) of section 355 is as follows :‑ "In summons‑cases tried before a Magistrate other than a presidency Magistrate, and in cases of the offences mentioned in subsection (1) of section 260, clauses (b) to (m), both inclusive, when tried by a Magistrate of the first or second class and in all proceedings under section 514 (if not in the course of a trial), the Magistrate shall make a memorandum of the substance of the evidence of each witness as the examina tion of the witness proceeds." This section broadly speaking, permits a Magistrate to make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds in summons cases or in summary trials. A proceeding under section 145 of the Code can never be said to be a summons case. A summons case has been defined in clause (v) of section 4 of the Code as follows: ‑ " "Summons‑case" means a case relating to an offence, and not being a "warrant‑case"." Warrant case has been defined in clause (w) of the said section as follows: ‑ " "Warrant‑case" means a case relating to an offence punishable with death, transportation, or imprisonment for a term exceeding six months." It is clear that a proceeding under section 145 of the Code is not one relating to an offence. It is a proceeding for preservation of public peace when there is apprehension of breach of peace and it gives limited jurisdiction to a criminal court to interfere with the property of a person for the purpose of maintenance of peace in the circumstances specified therein. It ;s, therefore, obvious that section 355 of the Code has no manner of application to a proceeding under section 145 of the Code. The provision of section 356 of the Code makes it clear that a Magistrate is not permitted to record substance of evidence in a proceeding under section 145 of the Code. Section 356 of the Code requires the Magistrate to record the evidence and not substance of the evidence in an enquiry tinder Chapter XII. Section 145 occurs in Chapter XII. This requirement of law has to be complied with. The view expressed above will be clear from the language of the statute itself. Subsection (1) of section 356 of the Code is quoted below:‑ "In all other trials before Courts of Session and Magistrates (other than Presidency 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 of 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." Mr. Sarkar does not contest the proposition that section 356 of the Code requires that in all enquiries under Chapter XII of the Code, evidence of each witness is to be taken down in writing and that evidence means statement of a witness and not substance of evidence but he claims that this irregularity is cured by section 537 of the Code, there being no prejudice to the petitioner. I am unable to agree with this submission of Mr. Sarkar for the simple reason that substance instead of the evidence of the witnesses for the petitioner having been recorded, it is not known what evidence was actually given by the witnesses for the petitioner. I am, therefore, of opinion that this contention of Mr. Ismail has also substance. For the reasons stated above, the Rule is made absolute; the impugned orders of the Magistrate and the Additional Sessions Judge are set aside and the case is remanded to the trial Court to be disposed of in accordance with law by some other Magistrate. The proceeding was initiated as far back as in 1960, and there has been long delay in the disposal of the case. Such delay should not occur specially in proceedings under section 145 of the Code. I, therefore, direct that this case should be given priority over all other cases. A petition for summoning of the witnesses or for local inspection, if filed by any of the parties, should be considered by the Magistrate and disposed of in exercise of his discretion in any manner he thinks fit and proper giving however reasons therefore. Let the records of this case be sent down immediately to the trial Court for hearing of the case expeditiously. K. B. A. Rule made absolute.