Buroda Kant Roy v. Korimuddi Moonshee And Others

White, J.:— This is an application to set aside an order made under section 491 of the Criminal Procedure Code, directing Buroda Kant Roy to give security against a breach of the peace. A summons under that section was issued by a Deputy Magistrate named Baboo Kristo Chunder Roy, and he examined three witnesses and the case had arrived at the stage at which the petitioner has to be called upon to show cause, when Baboo Kristo Chunder Roy was transferred, and the present Deputy Magistrate was appointed in his place. Afterwards Buroda Kant Roy, who had been duly summoned to show cause, appeared by his Mooktear and applied that the witnesses for the prosecution should be resummoned and re-heard under section 328. This request the present incumbent in office did not comply with, but proceeded to hear the defence without re-summoning and re-hearing the witnesses, and then made the order complained of.

The petitioner urges that the order should be set aside, on the ground that the requirements of section 328 of the Criminal Procedure Code have been disregarded.

The Deputy Magistrate in his explanation says that, “Buroda Kant Roy's Mooktear might have asked me to re-summon and re-hear the witnesses, but I do not remember that he did so.”

The Deputy Magistrate having no recollection on the subject, we think we must give effect to the affidavit of the petitioner, and hold that the application was made and refused. And the probability is strongly in favor of our conclusion; for it appears from the further explanation offered by the Deputy Magistrate that he considered that the application was not one which the petitioner was entitled to make, for the Deputy Magistrate says that section 328, according to the view which he takes of it, does not apply to the case of an enquiry into the giving of security, because the words used in the first proviso are “the accused person,” and in the second proviso, “conviction.”

The first observation that arises upon the above explanation is this: If section 328 did not apply to the case then before the Deputy Magistrate, it was his duty, according to the ordinary principles which regulate the adjudication upon evidence, and the administration of justice, to recall the witnesses himself, and to take their evidence again from the beginning. He could only be relieved from performing that duty on the ground that section 328 of the Code of Criminal Procedure, applied to the case before him. We think, however, that section 328, notwithstanding the introduction of the words referred to by the Magistrate as a reason for a contrary construction, does not really apply as much to an inquiry having in view the giving of security against a breach of the peace, as to a trial of a party who may be accused of an offence. In the body of the section the direction is general, that the Magistrate is to adopt the procedure prescribed in that section whenever a case is before him in which part of the evidence has been heard by his predecessor. Section 491 directs that an enquiry into giving security shall be adjudicated upon evidence. Upon such an enquiry, the party brought before the Magistrate is in substance “accused” of being likely to commit a breach of the peace, or of doing an act which is likely to produce a breach of the peace. And if the Magistrate finds that he is, the order which the Magistrate makes directing him to give security is in substance a conviction, though different in its form and effect. The reasons for adopting the procedure of section 328, when there has been a change of officers pending the enquiry, are just as strong in the case of an enquiry into giving security as they are in the case of an enquiry into an offence. And I may repeat that the only result of our coming to the conclusion that section 328 does not apply to a case like the present one, would simply be to compel the Magistrate in this, and all similar cases, to commence the enquiry afresh. We are, therefore, of opinion that section 328 did apply, and that the Magistrate was bound in this case, upon a demand by Buroda Kant Roy, to re-summon and re-hear the witnesses who had been heard by his predecessor, and that not having been done, his adjudication of the case is not in accordance with the provisions provided by the Criminal Procedure Code.

The rule is made absolute, and the Magistrate's order is set aside.