TMI Blog1926 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... l proceedings, and proceedings were taken against Mani Iyer and against the present appellant Abdul Rahman, who was alleged to have abetted the forgery in order to injure or ruin trade rivals. 5. After some mistaken steps See Nga Hla U v. King-Emperor (1925) I.L.R. 3 Rang. 139, the matter finally came before the District Magistrate at Rangoon. He, after taking evidence, formulated two charges against each of the accused. The first was to the effect that each of them acting jointly with the other, instigated some person unknown to forge false dates and serial numbers and the warrants; and the second was that they attempted to procure the head process server to alter the dates on the register so as to make them correspond with the forged dates on the warrant. 6. Upon these two charges the District Magistrate convicted both the accused; and upon the first charge he passed sentence on each of two years rigorous imprisonment. In respect of the second charge he passed no sentence. 7. Both the accused appealed from these convictions and sentences to the High Court which affirmed the convictions, but reduced the sentence to rigorous imprisonment for nine months. From this convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 212, where a Magistrate when trying the owners of certain licensed premises on a charge of refusing to admit the police, acquitted the employers and forthwith proceeded to try and convict the servant without giving him an opportunity of electing to be tried by another Magistrate. 12. But in that case the Magistrate was proceeding under Clause (c) whereas in this case he was proceeding under Clause (a). It was not a case in which while trying one person, the Magistrate finds occasion to formulate a charge against someone else, but a case in which he was taking cognizance of an offence after receiving a complaint of the facts which constituted the offence. He formulated this second charge as he formulated the first in consequence of the one complaint. 13. In this connection Begu v. The King-Emperor (1925) L.R. 52 I.A. 191: s.c. 27 Bom. L.R. 707 is not without importance. 14. The second point and the one mainly relied upon on behalf of the accused can be best stated in his favour by setting out the material parts of an affidavit sworn on his behalf by his clerk Narayan which was produced to the Court of Appeal. He deposes that he was present on all the dates on which witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent in person, it shall be interpreted to him in open Court in a language understood by him. (2) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language 16. The point having been raised by this affidavit and the additional grounds of appeal on behalf of the accused, the High Court required a report from the District Magistrate, and it appeared that the course taken was adopted in order to save time and to meet the wishes of the counsel for the accused. 17. Their Lordships have thought it right that this should be stated in exoneration of the District Magistrate, and because in applying Section 537 of the existing Code of Criminal Procedure, the Court is directed to have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings, but they wish it to be understood that no serious defect in the mode of conducting a criminal trial can be justified or cured by the counsel of the advocate of the accused. 18. Now with regard to the objections taken in this affidavit, they are two: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Indian Courts of Appeal in criminal matters and the effect of Sections 535 and 537 of the Code of Criminal Procedure upon which there has been some difference of opinion in India, their Lordships think it desirable for the guidance of the Courts that they should pronounce their opinion upon these points. 25. With regard to one objection made on behalf of the accused, a careful study of the section will show that the object of reading over the deposition is to obtain an accurate record from the witness of what he really means to say, and to give him an opportunity of correcting the words which the Magistrate or his clerk has taken down. It is not to enable the accused or his advocate to suggest corrections. 26. The distinction between Section 360 and Section 361 is very marked. Under the latter section, if evidence is given in a language not understood by the accused or his pleader, it is to be interpreted into their language, while under the former section when it is read over, it is to be interpreted to the witness in his own language, but there is no provision for its being interpreted to the accused. Thus if the depositions are taken down in English, and the language of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for instance, if the pronunciation of the Magistrate or of the interpreter in a language not his own, was difficult to follow, or if a witness was partially deaf. But it is dangerous in cases of criminal law to accept equivalents, and except in cases where reading over to the witness would be absurd, as, for example, with a stone deaf person, the provision should be complied with. The course adopted in this case seems to be that which was condemned in the case of Jyotish Chandra Mukerjee v. Emperor (1909) I.L.R. 36 Cal. 955. 30. Then arises the further question whether non-compliance in this respect should vitiate a trial, and in this connection their Lordships have to consider the provisions of Sections 535 and 537 of the Code of Criminal Procedure, which are as follows :- 535. (1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice hag in fact been occasioned thereby. (2) If the Court of appeal or revision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be frame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused. 36. The other authorities which have been brought to their Lordships' notice, are decisions of the High Courts in India. There is Emperor v. Chedi (1905) I.L.R. 28 All. 212 already quoted, on which their Lordships offer no comment, and several decisions in Calcutta. One of the earliest is the case of Queen v. Sheikh Bazu (1867) 8 W.R. (Cr.) 47, F.B. in 1867 where it was held by a Full Bench of the High Court of Calcutta that there had been an error in the action of the Magistrate in sending up joint charges against persons who took part in the not on opposite sides, but that inasmuch as the accused had had a fair trial notwithstanding, the conviction should not be set aside. 37. A more apposite case is that of Jyotish Chandra Mukerjee v. Emperor (1909) I.L.R. 36 Cal. 955 decided In 1909 already cited. The error in that case seems to have been the same as the error in the present case; but Jenkins C.J., delivering the judgment of the Court, said that they were able to hold that in the special circumstances, the omission was not fatal. 38. On behal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
