Emperor Vs. Dosabhai J. Dhondy - Court Judgment

Excerpt:
criminal procedure code (act v of 1898), sections 254, 255, 256, 257-warrant case-trial-cross-complaints-evidence for prosecution cannot be treated as defence evidence in the other-legal procedure to be strictly followed-practice cannot vary the procedure.;in trying two cross-complaints, the magistrate heard the evidence for the prosecution in each case. in conformity with the practice that had grown up in the course of years, the prosecution evidence in the one case was treated as defence evidence in the other. no charge was formally framed in either case and the procedure prescribed by sections 255 and 257 of the criminal procedure code was not followed. the magistrate then decided the cases without any further evidence. the accused having applied to the high court :-;annulling the proceedings, (1) that the trial conducted in a mode so materially different from that prescribed by law was not a proper trial;;(2) that the differences between the procedure followed and the legal procedure were of too fundamental and important a kind to be treated as irregularities cured by any of the sections in chapter xlv of the criminal procedure code. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. heaton, j.1. this is an unimportant case except in so far as the points argued before us touch on matters of principle. as it happens, there is a principle of considerable importance which does arise.2. what happened was this: cross complaints were filed, one in the court of the chief presidency magistrate, the other in the court of another presidency magistrate. the second was transferred for trial to the chief presidency magistrate. he heard the evidence for the prosecution in each of the cases. then without framing a charge formally as required by section 254 of the criminal procedure code and without following the provisions of sections 255, 256 and 257 in the first case, he dealt with it as if a charge had been framed and treated the evidence in the other case as defence evidence in the first. on that understanding, both cases were argued before him without any further evidence being taken, and both were decided. in doing this, the magistrate followed a practice, we learn, which apparently has grown up in the course of years and for which the chief presidency magistrate personally is not responsible. i do not wish to suggest that a trial conducted in that way would not be a fair trial, but it is a trial conducted in a mode materially different from that prescribed by the code of criminal procedure. the provisions of that code have to be followed, so far as they apply, by presidency magistrates and those magistrates are not at liberty to substitute for the procedure of the code a procedure which has arisen by usage, however convenient the latter may be. we find it impossible to hold that a trial conducted in a mode so materially different from that prescribed by law is a proper trial. that it is materially different will appear by considering the provisions of chapter xxi of the code which deals with trial of warrant cases, and is applicable. according to the code, the magistrate ought to have framed a formal charge and to have called on the accused to plead to that charge, the accused then had to be required to state whether he wished to further cross-examine the prosecution witnesses, and he should have been called on to enter on his defence and produce his evidence. in fact, no formal charge was made, the accused was not asked whether he wished to recall and cross-examine the prosecution witnesses and he was not called on to produce his evidence. evidence taken in another case which included the examination-in-chief and cross-examination of the accused himself was treated as evidence for the defence. it seems to me that the differences between the procedure followed and the legal procedure are of too fundamental and important a kind to be treated as irregularities cured by any of the sections in chapter xiv of the code. as i have said, the case is important only as illustrating a principle, the principle being that the provisions of the code must be followed; they are not to be set aside in favour of a different procedure. we have been compelled to deal with this case as an illustration of the principle i have mentioned on account of what has been brought to our notice in the case. but the unimportance of the case in itself is such that it is quite unnecessary to direct a fresh trial.3. therefore, the order which i would suggest is, that the conviction be set aside and the accused be acquitted and the fine, if paid, be refunded.shah, j.4. i agree.