Law: Criminal Procedure Code (V of 1898)

Section: 428,375(2)

Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 428 375(2)-Procedural defects-Rectification of--Powers of High Court-Held: Undisputedly Sections 428 and 375(2) of Cr.P.C. give plenary powers to High Court for rectifying procedural defects or allowing further enquiry or additional evidence which has bearing on guilt or innocence of accused, to avoid injustice to either party-Held further: Omission in separately allowing opportunity of cross examination to accused, is mainly of technical and procedural nature which needs to be rectified-Case remanded. [P.3738]A,BC AIR 1943 Calcutta 521 rel. ORDER Munawar Ahmad Mirza, J.--During course of arguments, learned counsel for convict/appellant pointed out that opportunity of cross-examining statement of P.W. 8 Saidan Marri has not been granted to convict/appellant Syed Hakim and Ghuiam Sakhi, who were represented by M/S W.N. Kohli and Syed Shabir Shah Advocates. Mr. Rafiq Ahmad Advocate who represented accused Latif and W.N. Kohli Advocate are present in the Court. We enquired from them about factual position, whereupon Mr. Rafiq Ahmad Advocate clarified that he was mainly representing convict Latif. However, in pursuance of order dated 16.5.1989 passed by trial court he appeared for pauper accused Syed Hakim and Ghulam Sahki till4.9.1989 when inability to further represent them was disclosed to the trial court. Record indicates that thereafter M/s W.N. Kohli and Shabir Shah Advocates represented convicts (i) Syed Hakim and (ii) Ghulam Sakhi.Whereas Mr. W.N. Kohli Advocate expressed that some mistake or confusion appears on record, regarding non-availing of opportunity of cross examination on behalf of two convicts i.e. Syed Hakim and Ghulam Sakhi.In view of above situation we have heard learned counsel for parties on this aspect. Undisputedly Sections 428 and 375(2) Cr.P.C. enjoin plenary powers to this court for rectifying procedural defects or allowing further enquiry or additional evidence, which has bearing on the guilt or innocence of accused to avoid injustice to either party. In this view we are also supported by the observation in case Emperor Vs. Lai Mia (AIR 1943 Calcutta 521). Relevant observations are…

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