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1 - 10 of 17 (0.30 seconds)Emperor vs Harischandra Talcherkar on 11 December, 1907
And the point for decision is as to what is the true construction of Section 362(4). In this connection several cases have been cited at the bar. The first of these is a decision of this Court reported in -- 'Emperor v. Harischandra', 10 Bom LR 201 (B). It may be noted that that case was decided before the amendment of Section 362 in 1923. In that case the applicant was charged with committing the offences of insult and assault and was convicted and sentenced by a Presidency Magistrate to pay a fine of Rs. 15. The petitioner applied to the High Court and it was observed :
P.X. D'Souza vs Emperor on 26 November, 1931
In taking this view I am supported by the decision of Sir John Beaumont in --'D,Souza v. Emperor', (F), with which I respectfully agree. While, therefore, I agree with Shah, J. about the desirability of recording evidence even where a Presidency Magistrate is not required to do so, I am unable, with respect, to concur with him in the construction of Section 362 (4).
Naran Velji vs Ranjitsingh Jamnadas Kapadia on 26 March, 1954
27. Lastly, it may not be out of place to point out that where the Legislature intended that a Magistrate should use his discretion, it said so in terms. For instance, Section 211, Sub-section (2), Criminal P. C., says that the Magistrate may in his discretion allow the accused to put in a further list of witnesses at a subsequent time and Section 212 lays down that the Magistrate may in his discretion summon and examine any witness named by the accused in the list submitted by him under Section 211. We have no doubt that if any discretion was intended to be given to a Presidency Magistrate in the matter of recording evidence in non-appealable cases, at the time of the amendment of Section 362 in 1923, Sub-section (4) would have in terms stated so. The right conferred by Sub-section (4) is unlimited and, therefore, with great respect, I am unable to agree with the view taken by Shah J. in -- 'Naran Velji v. Ranjitsingh (A).
P.D. Shamdasani vs Sir H.P. Mody on 29 November, 1943
23. With respect, the view taken in -- 'D'Souza v. Emperor (F)' and -- 'Shamdasani v. H.P. Mody (G)', as to the construction of Sub-section (4) of Section 362, is more in consonance with the language of Sub-section (4) than the view taken by Shah J. in -- 'Naran Velji v. Ranjitsingh (A)'. It is a more logical view and the one which does no violence to the words of Sub-section (4) which are perfectly plain and clear and present no difficulty of construction. If the Legislature, for clarifying the position which was not so clear as Section 362 stood before its amendment in 1923, deliberately enacted Sub-section (4) laying down in terms that in cases other than those specified in Sub-section (1) of the section, it shall not be necessary for a Presidency Magistrate to record evidence, the High Court cannot compel a Presidency Magistrate to record evidence in any type of non-appealable cases upon the ground that in the exercise of its revisional jurisdiction, it might have the opportunity of scrutinising the evidence and doing justice, so that justice may not only be done, but may also be seen to have been done.