Balkesar Singh vs King Emperor

Jwala Prasad, J.—The rule issued by a Division Bench of this Court is directed against an order of the Deputy Magistrate of Daltongunj, dated the 25th November, 1921, in a case convicting the accused of an offence u/s 457, I.P.C. and imposing upon him a sentence of three months'' rigorous imprisonment. The learned Vakil appearing on behalf of the accused impugns the aforesaid conviction and sentence upon the ground that the trial held by the Magistrate was vitiated by certain illegalities and irregularities. The first ground urged is that the Magistrate omitted to examine the accused u/s 342, Criminal Procedure Code after the close of the prosecution evidence before the accused was called upon to enter into his defence.

The learned Vakil has referred to the certified copy of the record of the case prepared in the form kept u/s 263 of the Code of Criminal Procedure, and contends that from the copy it does not appear that there was any plea of the accused recorded far less, when he was examined, u/s 342 of the Code.

The original record does show that the accused''s plea was recorded in the column headed "The plea of the accused and his examination (if any)." The heading and the entry made by the Magistrate in this column appear to have been omitted on the certified copy granted to the accused filed along with the application to this Court. The certified copy contains the columns both before and after the aforesaid column relating to the plea of the accused and his examination. The copy was applied for on the 14th December and was granted on the 21st December.

It is not possible to find out the reason how the omission of this important column in the copy granted to the accused occurred. This, however, is a matter for the Magistrate to enquire and investigate. I must take the record as it is and hold that the plea of the accused and his examination was recorded in the appropriate column. The entry in that column runs as follows:--

The accused says '' I have not committed any offence and the case is false. I cannot say why the complainant has brought this false case. I would file the written statement.''.........Later, a written statement was filed for the accused. It is enclosed with this record." There is nothing on the record to indicate when the accused was examined namely whether before or after the close of the prosecution case. This entry is not dated. After the close of the prosecution evidence the Magistrate''s signature appears at the end of the last witness for the prosecution and is dated the 16th November, 1921. Thereafter the entry of the Magistrate on that date is "Evidence for the prosecution closed. The accused is not ready with his evidence and wants his witnesses to be summoned......Summon the abovenamed witnesses for the 28th November, 1921. The accused on bail as before. All prosecution witnesses discharged.

It appears that a written statement on behalf of the accused was filed on that very day as is mentioned in the column referred to above relating to the plea of the accused and his examination.

It has been settled by authorities that a written statement filed by an accused person cannot take the place of his examination u/s 342, vide the case of Raghu Bhumij v. King-Emperor (1920) 1 P.L.T. 241 : 58 I.C. 49 : 5 P.L.J. 430, and the decisions referred to therein. Therefore, the written statement filed by the accused in the present case could not, absolve the responsibility of the Magistrate to examine the accused u/s 342 of the Code. The note made in the column referred to above only shows that, first, the accused was examined and his plea was recorded, and, afterwards the written statement was filed by him. It does not appear that he was examined after the close of the prosecution case.

The learned Deputy Commissioner in his letter No. 179 dated the 12th January, 1922, addressed to the Assistant Registrar of this Court, refers in paragraph 2 to the explanation given by the trying Magistrate to the effect that there is a column in the summary-trial form, headed " The plea of the accused and his examination (if any)" in which the full statement of the accused after examining the principal prosecution witnesses was recorded, adopting the procedure of the warrant case. Thus the trying Magistrate contends that this ground does not seem to prevail.

But the statement of the accused in the aforesaid column according to the trying Magistrate, was recorded after examining the principal prosecution witnesses; the Magistrate does not say, after all the prosecution witnesses. The Law requires that the examination of the accused should take place after the close of the prosecution evidence and before the accused is called upon to enter to his defence; vide Raghu Bhumij v. King Emperor (1920) 1 P.L.T. 241 : 58 I.C. 49 : 5 P.L.J. 430, in Suraj Pande v. King Emperor (1920) 1 P.L.T. 641 : 58 I.C. 521 : 1920 P.H.C.C. 281.

The offence for which the accused was being tried was that triable in a warrant case and, therefore, the procedure for warrant cases would apply to the trial of the case though a summary one u/s 262, Criminal Procedure Code. It was pointed out in the case of Mahomed Hossain Vs. Emperor, , that the examination of the accused u/s 342 is mandatory.

Therefore in the absence of anything on the record to show that the requirements of Section 342 were complied with, and in view of the explanation of the trying Magistrate referred to above, I hold that the trial is vitiated on account of the illegality referred to above. The record prepared in the case is further defective inasmuch as the memorandum of the substance of the evidence of each witness has not been signed by the Magistrate as is required by Section 264 of the Criminal Procedure Code.

That section prescribes the mode in which the record of the evidence of witnesses should be prepared in summary trials in cases of the offences mentioned in sub-section (1) of Section 260, Clauses (b) to (m) when tried by the Magistrate of 1st or 2nd class. The offence in the present case was one u/s 457, I.P.C. which is one of the sections mentioned in Section 261(i) of the Cr.P.C. Clause (1) of Section 355 says that the Magistrate shall make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds.

This the Magistrate has done in the present case. He has prepared a memorandum of the evidence of each witness but he has not signed the said memorandum as is required by Clause (2) of the section which says: Such memorandum shall be written and signed by the Magistrate with his own hand and shall form part of the record.''

It has been held that non-compliance of the requirements of Section 355 constitutes an illegality which must vitiate the trial. But for the aforesaid illegalities arising out of the non-compliance of Section 342 and 355 the record prepared by the Magistrate appears to be very careful and complete. He has recorded in sufficient detail the evidence of all the prosecution and defence witnesses, and it is, therefore to be regretted that the aforesaid errors should have been committed so as to vitiate the careful trial held by him.

The learned Vakil on behalf of the accused then submits that the conviction of the accused u/s 457, I.P.C. is bad inasmuch as the Magistrate has found that the prosecution failed to establish the intention with which the house trespass was committed by the accused, namely, for the purpose of committing theft and consequently it was not open to the Magistrate to convict the accused of an altogether different intent, namely, to commit adultery.

The case of the complainant was that the accused had entered the house with a view to commit theft and he sought to prove it by showing that the granary was broken and some grains were lying near him. He further sought to support his case by the prosecution witnesses. In the cross-examination on behalf of the accused, it was suggested that the complainant was displeased with the accused for a suspicion of having illicit connection with the wife of the former and that he had threatened the accused to implicate him in a false case. The prosecution denied the suggestion.

In the circumstances of the case, the Magistrate came to the conclusion that the intention of theft with which the accused was charged was concealed by the prosecution and that the real intention of the accused was to carry an intrigue with the wife of the complainant. The reason given by the Magistrate for coming to the conclusion appears to be sound; but the question is whether the accused could be convicted of a different intention than the one of which he was charged.

Section 238, Cr.P.C. empowers the Magistrate to convict the accused of a different charge from what he was originally accused of, provided the accused was not in any way prejudiced by the conviction on the new charge. In the case of Karali Prasad Guru Vs. Emperor, it was held that the accused was not prejudiced inasmuch as the accused himself definitely set up the plea of having entered the house on account of previous intrigue and upon the invitation of the widow who was occupying the house in question.

Mookherjee, J., fully recognised the proposition laid down in the case of Behari Mahton Vs. Queen-Empress, that "an accused person is entitled to know with certainty and accuracy the exact nature of the charge brought against him, and unless he has this knowledge, he must be seriously prejudiced in his defence:" and following the dictum of Cough, C.J. in Reg. v. Govindas Haridas 6 B.H.C.R. 76 (Cr.) that the nature of the case made at the trial against the prisoner, the evidence that was given and the line of defence set up by him, are all matters to be taken into consideration.

His Lordship held in that case that in the circumstances of the case and considering more particularly the defence set up by the accused and the evidence produced by him, the accused was not at all prejudiced.

In the present case the prosecution concealed the intention and when opportunity was given to it by suggestions made in the cross-examination, it still refused to accept the suggestions. The accused did not admit that he had entered the house. He pleaded alibi and he denied the occurrence altogether. He simply suggested that the case was falsely lodged against him on account of the suspicion by the complainant that the accused was carrying on an intrigue with his wife.

Therefore upon the case of the prosecution and on the line adopted by the defence, the accused could not be said to have any knowledge of the charge of which he has now been convicted, namely, of having entered the house with the intent of committing adultery.

This was the view taken in an exactly similar case in Mahomed Hossain Vs. Emperor, . The observations made in that case are so appropriate that I am tempted to quote in extenso:

Then again the charge was with intent to commit theft, as alleged by the prosecution in their evidence, and in their evidence they did not aver that there was any other reason for the house-breaking. It was the defence which tried to elicit from the prosecution witnesses that their was some familiarity between the accused and a woman in the complainant''s house. It is, therefore, on the defence that the conviction rests and not on the prosecution.

There can be no doubt that when the learned Magistrate found that the charge of theft or the charge of house-breaking with a view to commit theft broke down, and it appeared that there was another object, it was his bounden duty to have given the accused notice of that by drawing up a charge clearly stating what it was that he was accused of doing. The trial appears to us to have been vitiated by these errors, and the conviction and sentence are, therefore, set aside.

The question then arises as to whether a re-trial should be ordered. Herein also I would adopt the views of their Lordships in the case referred to above: We do not order a re-trial because the accused has already been 21 days in jail, and we consider that it is sufficient to meet the ends of justice in this case.

In the present case the accused has been in jail for two months and he was sentenced only for 3 months. The petitioner will be released and set at liberty.