NAURANG SINGH SHER SINGH Vs. PASHORI SINGH AND ORS.
HIGH COURT OF PUNJAB AND HARYANA
Naurang Singh Sher Singh
Pashori Singh And Ors.
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Kesho Ram Passey, J. -
(1.) NARAIN Singh filed a complaint under Sections 323, 504 and 448, Penal Code against Pashori Singh, Buta and Jeona on 9 -9 -2001 in the Court of Sardar Amar Singh, District Magistrate, Kapurthala. After recording evidence of the prosecution witnesses a charge under Section 323, Penal Code, was framed against Pashori Singh but Buta and Jeona were discharged. The complainant filed a revision in the Court of the Sessions Judge, who accepted it and directed further enquiry under Section 436, Code of Criminal Procedure against Buta and Jeona and sent the case to Sardar Banwari Lal, Magistrate 2nd Class, Kapurthala. Sardar Binwari Lal acting on the same evidence that had been recorded by Sardar Amar Singh framed charges under Section 448, Penal Code, against Jeona and Buta. At the request of the accused all the prosecution witnesses were recalled under Section 256, Code of Criminal Procedure for further cross examination. The proceedings had reached the defence stage when Sardar Banwari Lal was transferred and was succeeded by Sardar Jogindar Singh, Magistrate 1st Class. The accused demanded retrial under Section 350, Code of Criminal Procedure, and all the prosecution witnesses were recalled and reexamined. The accused also examined some witnesses in defence. Pashori Singh was convicted under Section 323, Penal Code, and Buta and Jeona under Section 448, Penal Code and each of them was sentenced to pay Rs. 80 fine. The learned Sessions Judge has also dismissed their revision petition and they have now come up to this Court. It is contended by Sardar Ujagar Singh that the failure of Sardar Jogindar Singh to examine the accused under Section 342, Code of Criminal Procedure after the prosecution witnesses had been examined afresh vitiates the trial from that stage and has cited Akhtar Mahomed v. Emperor, A.I.R. 1927 Lah. 720 :, 29 Cr.L.J. 125 in support of his contention. Section 342, Code of Criminal Procedure requires the Court to call upon the accused to explain any circumstances appearing in the evidence against him and to question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. Compliance with these provisions is obligatory even though the retrial takes place under Section 350, Code of Criminal Procedure. The same set of witnesses that had been examined by Sardar Amar Singh were put in the witness box to support the prosecution case before Sardar Jogindar Singh. In Akhtar Mohammad v. Emperor, A.I.R. 1927 Lah. 720 :, 29 Cr.L.J. 125 the Magistrate trying the case was transferred and his successor began the trial de novo but did not again examine the accused under Section 342, Code of Criminal Procedure. It was held by Harrison J. that the Succeeding Magistrate must have given the accused an opportunity to explain any points which might have been made out against him and he must have heard what the accused had to say and that it was not sufficient for his predecessor in office to have done so. Failure to follow the procedure laid down under Section 342, Code of Criminal Procedure was held to vitiate the entire proceedings. The case before me is on all fours with Akhtar Mahomed v. Emperor, A.I.R. 1927 Lah. 720 :, 29 Cr.L.J. 125 and the omission of the trying Magistrate to offer an opportunity to the accused to explain the evidence that bad appeared against them amounts to an incurable irregularity. I would, therefore, accept the revision and would quash the proceedings from that stage but as this petty criminal litigation has been hanging on for the last six years, I do not think it necessary to order a retrial. Fine if paid by the convicts shall be refunded to them.;
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