1. The petitioner was put to trial for an offence under section 377, P. P. C. The evidence of the two eye- witnesses Mohammad Jamil and Muhammad Iqbal P. W. 1 and P. W. 2 respectively was recorded by the Reader of the learned Magistrate trying the case while the Magistrate was sitting in his retiring room: The accused had not been afforded an opportunity of cross-examination of the witnesses.
2. He put in an application on 8th January, 1981 making that complaint and the learned Magistrate recalled the two witnesses and allowed the accused to cross--examine them. The accused petitioner was convicted under section 377, P. P. C. And sentenced to undergo two years' R. I. With a fine of Rs. 300. This is vide order dated 13th May, 1981. The accused-petitioner filed an appeal and an objection was taken regarding the conduct of the trial. The learned Additional Sessions Judge dealt with the point as follows "Learned counsel for the appellant then argued that the statements of Mohammad Jamil P. W. 1 and Mohammad Iqbal P. W. 2 were recorded by the Reader of the Court without affording any opportunity to the appellant to cross-examine them while the Presiding Officer was sitting in the retiring room. To substantiate this allegation, my attention has been drawn to an application dated 8th January, 1981 on the file of the learned lower Court in which recall of the witnesses named above was demanded on the said ground for cross-examination. The application was allowed and the said P. Ws. Were recalled and subjected to cross-examination by learned counsel for the appellant. Since the grievance of the appellant was redressed by the learned lower Court itself, the argument of the learned counsel has no force in appeal."
3. Finally, the learned Additional Sessions Judge dismissed the petitioner's appeal. This is vide order dated 30th August, 1981. The petitioner has filed the above-titled criminal revision petition.
2. When it had come to the notice of the learned Additional Sessions Judge on appeal that the evidence of the eye-witnesses was record--ed by the Reader of-the trial` Court while he himself was sitting in the retiring room the only order he could pass was to direct retrial. Recording of the evidence in the absence of the presiding judicial Officer by his Reader is thoroughly unauthorised and illegal and when the Presiding Officer signs that recorded evidence as if he had done it or it has been recorded on his direction and in his presence, he is really forging the public judicial record. The crime can entail not only removal from holding a judicial office but will amount to contempt of Court. The system of administering justice is subverted at its roots. Chapter XXV of the Code of Criminal Procedure, 1898 provides for "the mode of taking and recording evidence and trials" and the following sections lay down : ---S. 353. Evidence-to be taken in presence of accused.-Except as otherwise expressly provided, ail evidence taken under Chapters XX, XXI- aVd XXXII-A shall be taken in the presence of the accused, or when his personal attendance is dispensed with, in presence of his pleader."
4. S. 354. Manner of recording evidence.-In inquiries and trials (other than summary trials) under this Code by or before a Magistrate or Sessions Judge, the evidence of the witnesses shall be recorded In the following manner."
5. S. 355. Record in trial of certain cases by first and Second Magistrates.----(1) In cases tried under Chapter XX or Chapter XXII Magistrate of the first or second class and m all proceedings under section 514 (if not in the course of a trial) the Magistrate shall make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds.
(2) Such memorandum shall be written and signed by the Magistrate with his own hand, and shall form part of the record.
(3) If the Magistrate is prevented from making a memorandum as above required, he shall record the reason of the inability to do so and shall cause memorandum to be made in writing from his dictation in open Court, and shall sign the same, and such memorandum shall form part of the record.
6. S. 356. Record in other cases. (1) In all other trials before Courts of Sessions and Magistrate in inquiries under Chapter XII the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge; or in his presence and hearing and under his personal direction and superintendence and shall be the Magistrate or Sessions Judge .........
7. (2)
(3) & (4) ........................................---------------------------------------------------------.
8. S. 357. Language of record of evidence,-(I) The ProvincialGovernment may direct, that in any district or part of a district or in proceedings before any. Court of Sessions or before any Magistrate or class of Magistrates the evidence of each witness shall, in the cases referred to in section 356, be taken down by the. Sessions Judge or Magistrate with his own hand and in his mother tongue, unless he is prevented by any sufficient reason from taking down the evidence of any witness, in which case he shall record the reason of his inability to do so and shall cause the evidence to be taken down in writing from his dictation in open Court.
(2) The evidence so taken down shall be signed by the Sessions Judge or Magistrate and shall form part of the record.
9. Provided that the Provincial Government may direct the Sessions Judge or Magistrate to stake down the evidence in the English language or in the language of the Court, although such language is not his mother-tongue.
10. S. 358. Option to Magistrate in cases under S. 365.---In cases of the kind mentioned in section 355, the Magistrate may, if he thinks fit, take down the evidence of any witness in the manner provided in section 356, or, if within the local limits of the jurisdiction of such Magistrate the Provincial Government has made the order referred to in section 357 in the manner provided in the same section.
11. S. 359. Mode of recording evidence under section 336 or section 357--(1) Evidence taken under section 356 or section 357 shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative.
(2) The Magistrate or Sessions Judge may, in his discretion, take down, or cause to be taken down, any particular question and answer.
12. S. 360. Procedure in regard to such evidence when completed.--(1) As the evidence of each witness taken under section 356 or section 357 is competent, it shall be read over to him in the presence. Of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary be corrected.
13. (2)
14. (3)
15. S. 361. Interpretation or evidence to accused or his pleader.--(1) Whenever any evidence is given in a language not understood by the accused, and he is present in person it shall be interpreted to him in open Court in a language understood by him.
16. (2)
17. (3)
18. S. 363. Remarks respecting demeanour of witness.-When a Sessions Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination."
19. All the aforesaid provisions make it quite clear that a learned Magistrate trying a case shall record the evidence in his own hand or for reasons to be recorded under his direction and in his presence.
20. Various provisions quoted above cannot possibly be complied with if the Magistrate is not present and his Reader records the evidence.
3. The learned Assistant Advocate-General referred to section 357, Cr. P. C. But to his credit he submitted that the said provision has no application to the facts of the case and the action of the Magistrate was neither curable nor condonable.
4. The way the trial was conducted and evidence of the eye-witnesses recorded leave no doubt whatsoever that it was thoroughly illegal. Besides commission of forgeries in the public judicial record, clear contempt of Court was also involved. The entire system of judicial Administration of justice has been subverted. It needs no emphasis that officers exercising judicial powers should know and understand that the function is entrusted to them and they have to perform it. If they do not want to or are unwilling to perform it themselves, the proper and decent way is to walk out with grace rather than reluctantly carry on the duties through un authorised persons and be burden on the State and the citizens.
5. In view of what has been stated above, there is no option but to quash the entire proceedings. It is so ordered. An order of re-trial should follow. But the learned counsel for the petitioner has submitted that the petitioner had remained in jail for a period of.' one month during the trial and eight months since after his conviction by the learned Magistrate on 13th May; 1981 till today, and the entire sentence imposed on him was two years. Because of the acts of the Magistrate, he should not be made to undergo the agony of retrial all over again. He has also pointed out that the evidence against the petitioner was of two eye-witnesses who are not only related to the complainant but are quite false when they say that they happened to pass the place of occurrence. In all the circumstances of the case, it does not appear to be a fit case for re-trial. This is, therefore, not ordered.
21. The above-titled petition is disposed of in the above terms.