JUDGMENT
Shiv Kumar Sharma, J.
1. Meaningful question that emerges for consideration in the instant appeal is “would non-compliance with the provisions of Section 276 or 275(4) of Code of Criminal Procedure, 1973 (for short ‘New Code’) nullify the evidence of the witness recorded at the trial?
2. This question arises in the circumstances set out below:
“Appellants Kailash and Ram Karan were indicated before the learned Special Judge (Women Atrocities and Dowry Cases) and Additional Sessions Judge, Jaipur City/District Jaipur, for having committed murder of Hemlata. The learned Trial Judge vide judgment dated November 27, 1998 convicted and sentenced the appellants as under :
1. Kailash:
Under Section 302, IPC to suffer imprisonment for life and fine
of Rs. 500/-, in default to further suffer
six months'imprisonment.
Under Section 498A, IPC to suffer three years' rigorous imprisonment
and fine of Rs. 500/- in default to further
suffer three months' rigorous imprisonment.
Both sentences were ordered to run concurrently.
2. Ramkaran :
Under Sections 302/34, IPC to suffer imprisonment for life and
fine of Rs. 500/-, in default to further
suffer six months'rigorous imprisonment."
3. There is no eye-witness of the occurrence and the prosecution mainly rests on the dying declaration of Hemlata allegedly recorded by Bhawani Singh, Investigating Officer (P.W. 18). Statement of Bhawani Singh was taken down by the learned Trial Judge on March 19, 1998. The statement got typed in two pages and Bhawani Singh put his signatures on both the pages. The Presiding Judge however could put his signatures on one page only. As second page of the statement did not bear the signatures of Presiding Judge, the Additional Public Prosecutor on September 26, 1998 moved an application to re-examine Bhawani Singh. Learned Presiding Judge recalled Bhawani Singh and got his statement recorded again on October 31, 1998. As Counsel for the appellants was not present on that date the witness could not be cross-examined, Learned Trial Judge ignored the statement of Bhawani Singh recorded on March 19, 1998 and based the impugned judgment on his subsequent testimony taken down on October 31, 1998.
4. Learned Counsel for the appellants raised objection in regard to admissibility of subsequent statement of Bhawani Singh. Contention of learned Counsel is that provisions of Sections 276(3) and 275(4) are not mandatory and non-compliance of said provisions would not nullify the evidence of Bhawani Singh recorded on March 19, 1998. Reliance is placed on the case of L.D. Healy v. State of Uttar Pradesh, (1969) 2 SCR 948 and Sita Ram Sahu v. State of U.P., 1981 All. LJ 665.
5. We have heard the rival submissions and weighed the material on record.
6. Sections 275 and 276 of New Code respectively relate to the record in warrant and Sessions cases. Sub-section (4) of Section 275 and Sub-section (3) of Section 276 provide that evidence taken down at the Trial shall be signed by Magistrate/Presiding Judge and shall form part of the record. Sections 275 and 276 deal with the mode of recording evidence in trials before Magistrate and Court of Session. The sections correspond to Sections 356 and 359 of old Code. Their Lordships of the Supreme Court while considering Section 356(1) of the old code in L.D. Healy v. State of U.P. (supra), indicated that the object of the provisions in the Code relating to the recording of the evidence is to ensure that a correct record is maintained of what is said by the witness and the record may be available at a later stage of the trial and in appeal. If the Court is satisfied that in a given case the record notwithstanding any departure from the provisions relating to maintenance of the record is correct, the irregularity may be ignored if no injustice has resulted therefrom. Thus trial would not vitiate if instead of the Magistrate who recorded the evidence, his successor appended his signatures to the record of evidence.
7. Sita Ram Sahu v. State of U.P. (supra), was the case where statement of witness Suresh Kumar was scribed by the Reader on the dictation of the Presiding Officer of the Court. The statement was not signed by the Magistrate. The place for signatures below the endorsement “The statement was recorded in open Court under my dictation” and just above the designation was left blank. The Allahabad High Court in these facts propounded that provisions contained in Section 275(4) of New Code are not mandatory in the sense that non-compliance with it would not nullify the evidence of the witnesses provided there is no doubt the authenticity of the record.
8. Turning on to the case on hand we find that on March 19, 1998 the statement of Bhawani Singh (P. W. 18) got typed in two pages and on both the pages Bhawani Singh put his signatures. The learned Trial Judge could put his signatures on first page only and the place on second page for signatures below the endorsement “R.O. & A.C.” and just above the designation was left blank as the learned Trial Judge could not put his signatures. In the order sheet drawn on March 19, 1998 it was however incorporated that statement of Bhawani Singh (P. W. 18) was recorded and the order sheet was signed by the learned Trial Judge. In such a situation, there is no doubt about the authenticity of the statement of Bhawani Singh and learned Trial Judge fell in error in recalling him and rec-recording his statement. Irregularity in not putting signatures on second page of the statement of Bhawani Singh by the learned Trial Judge would not nullify the evidence of Bhawani Singh in view of ratio indicated by the Apex Court in L.D. Healy v. State of U.P. (supra). The provisions of Sections 275 and 276(3) are not mandatory provided there is no doubt about the authenticity of the record.
9. Under Section 311 of the New Code, the Court can recall and re-examine a witness. As the discretion under this section is vested in the Court, it is the Court, that has to make up its mind as to the necessary of re-calling a witness. Therefore, where a Court re-calls a witness at the direction of any party, it acts as a mere delegate of such party, which action amounts to an abdication of its functions and renders the trial unlawful. In the instant case the learned Trial Court acted at the behest of the State of recall and re-examine Bhawani Singh. The statement of Bhawani Singh was taken down without affording opportunity of cross-examination to the Counsel for the appellants. The impugned judgment of the learned Trial Court deserves to be set aside as it is based on the subsequent testimony of Bhawani Singh which was illegally recorded on October 31, 1998. The evidence of Bhawani Singh recorded validly on March 19, 1998 could not have been ignored. As the objection raised by learned Counsel for the appellants goes into the root of the matter, we have no other option but to set aside the impugned judgment.
10. For these reasons we allow the appeal and set aside the judgment dated November 27, 1998 of the learned Special Judge (Women Atrocities and Dowry Cases) and Additional Sessions Judge, Jaipur City/District Jaipur and remit the case back for deciding it afresh after considering the testimony of Bhawani Singh (P.W. 18) recorded on March 19, 1998 and ignoring his subsequent evidence. The record of the case be sent back forthwith. The appellants shall be produced before the learned Trial Judge on November 24, 2003. Learned Trial Judge is expected to dispose of the case preferably within two months thereafter.