SAJJAD MIRZA Vs. EMPEROR

JUDGEMENT

(1.) This Rule was obtained on the single ground that in the course of the trial contrary to Section 162 of the Criminal Procedure Code certain witnesses namely Prosecution Witnesses Nos. 2, 7 and 10 and Court Witnesses Nos. 2 and 3 had been cross-examined with reference to statements made by them to the police in the course of the investigation under S, 161 of the Criminal Procedure Code,

(2.) It turns out that as regards the Court Witnesses Nos. 2 and 3 they were not cross- examined contrary to Section 162 so far as can be ascertained at all. With reference to the Prosecution Witness No. 2 he was disbelieved altogether, and the learned Judge has in no way relied upon him nor is it suggested that there was anything in the evidence of the prosecution Witness No. 2 on which the defence could rely as proving this defence story. With regard to the Witnesses No. 7 and 10 it appears that these witnesses were treated as hostile witnesses. They came into the witness box and said that they were not present at the scene of the occurrence at all, which was the case for the defence. The defence did not suggest that they were present at the scene of the occurrence or that they could have given positive evidence. The evidence of these witnesses has been rejected in toto. In these circumstances it is reasonably clear that there has been no prejudice whatever to the defence even if one takes it that one or more of the questions put to the witnesses contravenes Section 162.

(3.) I cannot say too emphatically that if there is to be any notion that the smallest breach of Section 162 is to be regarded as entirely vitiating any trial I dissent from the notion altogether. In my judgment there is nothing at all in the section or in the nature of the subject-matter dealt with by the section to warrant that belief. The purpose of Section 162 is to amend for the purpose of criminal trials certain sections in the Evidence Act which states what evidence is admissible and inadmissible in certain circumstances. It is quite true that apart from Section 167 of the Evidence Act it would be open to a person accused to complain for the purpose of Section 537 of the Criminal Procedure Code that he has been prejudiced, e.g., before the jury by certain questions contrary to Section 162 being admitted and allowed to be answered. Apart from question of real prejudice it does not seem to me that it is of any avail in revision for a petitioner merely to show that out of the numerous questions and answers put in the course of the trial one or more of them is contrary to Section 162. That section is very difficult to apply and it will constantly happen, I am afraid, that breaches of section may take place sometimes harmful, sometimes harmless, but always objectionable. But the question in revision is one of such technicality as to enable the trial to be upset when it is clear that there has been no prejudice to the accused.