Meredith, J.:— Criminal appeal no. 438 is by Hazara Singh. He is represented by Mr. Gopal Prasad. Criminal appeal no. 478 is an appeal from jail by Hazara Singh against the same conviction and also by Sardara Khan. Mr. Gopal Prasad, though briefed only on behalf of Hazara Singh, has very kindly put the cases for both persons before us.

Both are Punjabis, and have been convicted by Khan Bahadur Mohammad Ozair, a learned Magistrate at Manbhum specially empowered under the provisions of section 30 of the Code of Criminal Procedure. They have been convicted in connection with a very daring dacoity, which took place on the night of the 9th of September, 1944, in the house of Abinash Chandra De (p.w 1) at Chirkunda, which is situated only 200 yards from the Chirkunda police-station. Both men have been convicted under section 397 of the Penal Code, which provides for a minimum penalty of seven years' imprisonment, and have been sentenced to seven years' transportation. The learned Magistrate has not explained why he imposed a sentence of seven years' transportation rather than seven years' rigorous imprisonment. No doubt, he could legally do so under section 59 of the Penal Code, but as it is well-known, and must have been known to him, that now-a-days convicts are no longer transported to the Andamans, this particular form of sentence seems without purpose.

It appears from the evidence, and the judgment of the learned Magistrate, that he has actually convicted the appellants for dacoity. Nevertheless, he does not refer to section 395 in the charge or in his judgment. It seems necessary to draw his attention to the fact that section 397 has reference not only to the offence of dacoity but also to the offence of robbery. Where it is proposed to use section 397, therefore, either section 395 or section 392 should be definitely referred to in the charge, so that the accused persons may know exactly what they have to meet. Section 397 merely provides the minimum penalty, it does not prescribe the maximum, and in itself would not disclose to the accused person that the offence of dacoity is a much more serious offence than that of robbery.

The story of Abinash Chander De is that at 2 A.M he was sitting in his house reading as was his practice, and his wife was sitting with him. Suddenly he felt that some one was about, and looked up and saw two Punjabis at his door. Four others entered the house. He was struck with a lathi and threatened with a dagger, and made to open his safe. The dacoits removed therefrom and took away Rs. 6,300 in cash, and ornaments in gold and silver to the value of five or six thousand rupees. One of the dacoits was armed with a Tommy gun, and with this he pushed Abinash's wife. As I have said, the police-station was only 200 yards distant, and a force of police constables known as the “Chirkunda Anti-smuggling Force” had their barracks only 100 yards distant, nevertheless the dacoits did not make off when Abinash and his wife raised an outcry, but proceeded to complete their task. As they were making off, however, a number of constables arrived from their barracks, who had heard the hulla, and they were able to arrest one of the dacoits, Prem Singh, who was the man who had used the Tommy gun and was found with it in his possession. He was subsequently tried and convicted under section 397. The appellants, probably because they had not been arrested in time, were placed upon supplementary trial. At this trial Sardara Khan has been identified by Abinash and by three of the constables (p.ws 2, 3 and 7) who had come to the spot. Hazara Singh has been identified by Abinash alone. It appears also that a test identification was held by a Magistrate in the Dhanbad sub-jail on the 23rd February, 1945, at 5 P.M, the two Punjabis being mixed up with fourteen other Punjabis similarly dressed, and the witnesses made there the same identifications which they made in Court.

There was practically no defence. The appellants had nothing to say except that they did not commit the crime. Sardara Khan went undefended throughout, and merely put a few questions to one witness. Hazara Singh was defended in the later stages of the trial, but owing to the course adopted by the learned Magistrate in regard to which a grievance has been made by Mr. Gopal Prasad, there was no cross-examination of Abinash by Hazara.

With regard to the last-mentioned point, the facts are as follows. The case was transferred to Mr. Ozair for trial on the 19th of May, 1945, and he summoned the prosecution witnesses for the 18th and 19th of June. On the 18th he examined p.ws 1, 2, 3, and 4, and no. 5 was tendered. The accused persons, who were then undefended, did not want to cross-examine the witnesses except in the case of one questioned by Sardara, and the witnesses were discharged. Next day, the 19th, p.ws 6, 7 and 8 were examined. A charge was framed under section 397, and the accused, who were still undefended, declined to cross-examine all the prosecution witnesses after charge. Prosecution witnesses 6, 7 and 8 were, therefore, also discharged. The Magistrate noted in the order-sheet that two witnesses remained to be examined and they must be produced on the 26th of June as the accused persons had to be despatched to Calcutta to stand their trial in another case.

The 26th of June had been declared a holiday, but as a witness had come from Calcutta and the Tommy gun had been obtained with difficulty, the Magistrate held his court. At that stage a petition was filed on behalf of Hazara Singh that he was now defended by a lawyer, and wished that the witnesses who had been discharged without cross-examination should be resummoned to be cross-examined. The Magistrate remarked that he had given full opportunity to both the accused to examine the witnesses, and to grant time to resummon the discharged witnesses would mean delay. The Tommy gun had been obtained with great difficulty. He observed:

“It is incumbent on the magistrate to resummon witnesses for cross-examination, unless he considers that such prayer is made for the purpose of vexation, delay or defeating the ends of justice. It was open to the associates of accused Hazara Singh to get him defended in the early stages of the trial. I am definitely of opinion, for the reasons mentioned above, that today's application on behalf of Hazara Singh to resummon the witnesses is meant to delay the proceeding and is for the purpose of vexation and defeating the ends of justice, and I, therefore, reject it.”

Mr. Gopal Prasad argues that there has been failure to comply both with the provisions of section 256 and of section 257 of the Code of Criminal Procedure. Secondly, he argues that the Magistrate was not justified in rejecting the application on the ground that it was vexatious and intended to defeat the ends of justice, and that the result has been that he has convicted Hazara upon the evidence of a single witness, and that witness has not been cross-examined.

The material provisions of section 256 are that the accused shall be required to state at the commencement of the next hearing after the framing of the charge, or if the Magistrate for reasons to be recorded in writing so thinks fit forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken, and if he says he does so wish, the witnesses named by him shall be recalled.

In the present case the learned Magistrate did not wait until the commencement of the next hearing. He asked the question whether the accused wished to cross-examine on the very day he framed the charge. If he wished to adopt this course he should have recorded his reasons, in writing, in accordance with the section. He did not do so directly, and, therefore, there is at least a technical failure to comply with the provisions of section 256. But he did note in the order-sheet that day that the accused persons had to be despatched to Calcutta for another trial, that is to say, that there was urgency, and consequently the non-compliance with section 256 was only technical. The Magistrate should undoubtedly have been more careful to state that he was asking the question forthwith for that reason. What he did has certainly not prejudiced in any way Sardara Khan, because, as I have said, Sardara remained undefended all along, and never at any time appears to have asked for a further opportunity to cross-examine the witnesses.

Section 257 provides that if the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process, unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing. There is a proviso that, when the accused has cross-examined, or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purposes of justice.

Here it may be said that the learned Magistrate has technically complied with the provisions of the section, because he has stated his reasons in writing, and he has said that the application was vexatious and intended to defeat the ends of justice. Moreover, technically, the accused though undefended had a previous opportunity for cross-examination, and had declined it. What the Magistrate did, however, was, in my opinion, certainly not prudent and I consider on the facts of the case he should not have adopted the view which he has expressed. On the contrary, it would have been more proper if he had treated it as a case coming under the proviso, where he could be satisfied that the recall of the witnesses was necessary for the purposes of justice. I can find nothing in the case upon which the Magistrate could properly hold that the application was vexatious and intended to defeat justice. The learned Magistrate says that Hazara's associates could have arranged to defend him earlier. How, it may be asked, did he know that Hazara had any associates, unless indeed he was prejudging his case? The result of what the Magistrate did was that Hazara has been convicted upon the identification of a single witness, and that witness was never subjected to cross-examination. Certainly, in my view, the Magistrate did not exercise his discretion wisely.

The conviction of Hazara has been based, as I have just said, on the evidence of a single witness, and quite apart from the lack of cross-examination. I consider that the conviction upon that evidence is not justified. Abinash in his first information stated that all the dacoits were wearing galpattas, that is to say, a large portions of their faces were admittedly hidden. The test identification was not held until more than five months after the occurrence. The light at best must have been dim. It has been frequently laid down by this Court that it is in general dangerous to rely upon identification by a single witness in circumstances such as these. In my opinion, the appeal of Hazara Singh must be allowed, and he must be acquitted.

I turn now to Sardara Khan's case. This man has certainly no grievance in regard to the Magistrate's procedure. As I have mentioned, he never applied for any recall of the witnesses, and he never engaged a lawyer at any time who could cross-examine for him. In his case there is identification by four witnesses. The Magistrate has also used against him evidence to the effect that Sardara took the police after his arrest to the Jodhpur Military Camp of the American Army, and pointed that place out “as the place from which the Tommy gun had been stolen”. If the Magistrate meant to admit this evidence under section 27 of the Evidence Act, he was not justified, because nothing was recovered as a result of any statement that may have been made. The evidence would have been material if any evidence had been led to show that the. Tommy gun recovered from the possession of Prem Singh had in fact come from that Military Camp, but there was no such evidence. The link was missing, which alone could have rendered the evidence relevant against Sardara Khan. The Magistrate was, therefore, in any event unjustified in taking this evidence into consideration against this appellant.

The evidence of identification is, however, in my opinion, sufficient to place Sardara Khan's complicity beyond reasonable doubt. Mr. Gopal Prasad has urged that there was an opportunity for the witnesses to see Sardara Khan before the identification was held. There is no evidence on the record from which anything of the sort could be inferred, and the Magistrate who held the test identification has given evidence that everything was done fairly and collusion was not possible. Mr. Gopal Prasad also points out that Abinash's wife should have been examined, and suggests that was not done because of a discrepancy between her statement and Abinash's as to what particular part Sardara had played. The contradiction, however, was not an important one, having regard to the confusion that must have prevailed and the lapse of time, and it was stated that the woman was ill and could not come to court. The failure to examine the woman, therefore, cannot, in my opinion, be regarded as detracting from the evidence of the four witnesses who have identified this appellant in court and did so at the test identification. Their number, to my mind, precludes the possibility of error or coincidence. There was no reason why they should have tried to identify the man falsely, and I think, therefore, the Magistrate was justified in holding that he was one of the dacoits.

The Magistrate, however, was not justified in convicting him under section 397. He has done so constructively, on the ground that Prem Singh used a deadly weapon, and, therefore, all who took part in the dacoity would be liable to punishment under section 397. This view is not correct. It is now well settled in all the High Courts in India, that section 397 cannot be applied constructively, and relates only to the offender who actually uses the weapon himself. At one time a contrary view was taken in the Allahabad High Court, but that Court has since come in line with the other High Courts. The learned Magistrate, in view of his remarks, may possibly have been misled by a sentence in Ratan Lal's commentaries on the Penal Code. The sentence is:

“Recently it has been held (speaking of the Allahabad High Court) that if a gun is used at a dacoity by a person or persons unknown, all of the dacoits must be punished with at least seven years' imprisonment”.

If the learned Magistrate had taken the trouble to read the commentary as a whole, he must have realized that this was a misprint. The reference made is to Abdul Salam v. Emperor(1), and what was held in that case was that section 397, Penal Code, does not provide that if a gun is used at a dacoity by a person or persons unknown, all of the dacoits must be punished with at least seven years' imprisonment. In other words, the section does not provide for joint liability as section 149 does.

In the circumstances the conviction of Sardara Khan under section 397 must be altered to a conviction under section 395 of the Code. I would maintain, however, the sentence of seven years, altering it from a sentence of transportation to one of seven years' rigorous imprisonment for the reasons I have already given. Having regard to the nature of the occurrence I do not regard a sentence of seven years as in any way too severe. On the contrary, it is to my mind inadequate. True, the learned Magistrate had no power to impose a sentence of more than seven years' imprisonment. In view of the allegations of the prosecution, therefore, the case should never have been sent to this Magistrate for disposal, but should have been tried by the Court of Session; and the Magistrate on receiving it should, in the circumstances, have returned it pointing this out.

In the result, I would allow the appeal of Hazara Singh, set aside his conviction and sentence, and acquit him. In the case of Sardara Khan, I would alter the conviction to one under section 395, and alter the sentence to seven years' rigorous imprisonment.

I consider it desirable that a copy of this judgment should be sent to the Provincial Government for information.

Bennett, J.:— I agree.

Order accordingly.

K.D