Ramchandra Prasad v. Emperor Opposite Party.

1. The petitioner is a person against whom proceedings have been taken under Section 107 of the Cr PC, on the ground that he is acting in a manner likely to cause a breach of the peace by refusing to pay and encouraging others to refuse to pay tolls demanded by the Bettiah Raj estate in respect of Raxaul bazar. The Raj, it appears, claims a right to realize not only tolls on transactions of sale taking place in the bazar, but also tolls on goods imported to and exported from the bazar area, and it is stated that the right to realize tolls on transactions of sale has not been and is not being disputed or interfered with; but the contest is only regarding the additional claim to realize tolls on export and import. If that is so the distinction is not clearly brought out in the judgments of the Courts below, and the question requires examination as to whether the facts are as represented here.

2. The Court of first instance passed an order requiting the petitioner to furnish security for keeping the peace. Before the Additional Sessions Judge, apart from the merits, some objections to the procedure were taken.

3. Among these was an objection to the order of the Magistrate dated 21st May 1936, after the case for the prosecution, the examination of the accused, the examination of defence witnesses and cross-examination of defence witnesses had all been concluded, directing at the in stance of the Court Inspector that two witnesses be re-called and one fresh witness called and certain fresh documents be called for. The witnesses were examined and the documents pat in evidence on 1st June, the Magistrate purporting to act under Section 540 of the Cr PC. The accused had already been examined and the Magistrate did not examine him again under S. 342. The Sessions Judge thinks that this omission vitiates the trial. He relies on the case in 6 PLJ 1741 which is not an authority for that proposition. 6 PLJ 174 was one in which there had been an omission to examine the accused. The case which laid down that examination of the witnesses at an early stage was no substitute for their examination at the proper stage, that is at the close of the prosecution, was 6 PLJ 644.2 That case, however, has been dissented from in a subsequent decision, 4 Pat 488,3 where it has been laid down that whenever the legality of a trial is challenged on the ground that the provisions of Section 342 of the Cr PC, have not been complied with, the test is whether there has been prejudice to the accused by reason of the absence of judicial questions and whether the defect is cured by S. 537 of the Code.

4. In the present case the accused had been examined at the proper time on close of the prosecution case and subsequently the Court took additional evidence under S. 540. This is exactly the position which came before a Bench of this Court in 3 Pat 10154 when it was held that it was not necessary to re-examine the accused person under S. 342. The learned Judge was in error, therefore, in holding that the trial was vitiated by the failure to examine the accused again. What the learned Judge should have considered was whether the additional evidence which the Magistrate admitted as under S. 540 had been properly admitted or not. If he thought that this evidence had been properly admitted, he should have decided the case on the merits on the entire evidence. If he thought that it was not properly admitted, it was open to him to exclude ib from consideration and to decide the case on the remainder of the evidence, that is to say such evidence as was on the record when the defence case closed on 21st May. There has been some discussion here as to whether the terms of Section 540 of the Cr PC, are wide enough to cover what has been done in this case. It seems to me that S. 540 is expressed in the widest possible terms and the intention is not to limit the discretion of the trying Court in any way. At the same time the Courts ought to remember that the purpose of S. 540 is not to enable one party or the other to fill up the gaps in his case and to improve it by new matter at a late stage, but to enable the Court to act in the interest of justice when it considers such action necessary, so that the question for the learned Sessions Judge would be whether in the state of the evidence as it stood on 21st May the Magistrate exercised his discretion properly in admitting additional evidence; and if the learned Sessions Judge thinks the answer to that question should be in the negative, it will be open to him to act accordingly. The order of the Sessions Judge directing a partial retrial can certainly not be supported for the reasons given in 1 PLJ 99.5 The appellate Court could either direct a complete retrial or call for further evidence to be placed before itself. It would merely harass both parties to order a complete retrial. I shall set aside the order of the learned Additional Sessions Judge and direct that he re-admit the appeal before himself and hear it and dispose of it according to law.

S.C/D.S

5. Order set aside.