Dunda Singh vs State

Samvatsar, J.—This is a reference under Sec. 458, Cr. P.C.

The petitioner Dundasingh is being prosecuted for an offence under Sec. 379, I.P.C. before the First Class Magistrate Kannod. On 4-8-1956 the learned Magistrate framed a charge against the petitioner under Sec. 379. I.P.C. and proceeded with the trial. Aggrieved by the charge framed against him, the accused Dundasingh preferred a revision-application to the Additional Sessions Judge Dewas. The learned Judge being of the opinion that in framing the charge, the trial Magistrate had not complied with the provisions of Sec. 251-A (2) of the Cr. P.C. referred the case to this Court with a recommendation that the charge may be quashed.

It appears that the petitioner had contended before the learned Sessions Judge that the trial court had not given him any hearing before the charge was framed and had in this respect contravened the provisions of Sec, 251-A (2) of the Cr. P.C.

Two points arise for consideration (i) Whether in framing a charge under Sec. 254 Cr. P.C. it is incumbent on the Magistrate to hear arguments of the prosecution and the accused and (ii) Whether omission to do so vitiates the proceedings.

The newly introduced Sec. 251-A (3) provides for framing of a charge. That section is as follows:--

If, upon such documents being considered, such examination, if any being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

In the present case, there was apparently no compliance with the provisions of this Section and a charge was framed without the accused being given an opportunity of being heard. It cannot therefore be disputed that the learned Magistrate failed to comply with the provisions of law in this respect.

The question to be considered, is whether the failure of the learned Magistrate to comply with the provision of Sec. 251-A (3) is an illegality or an irregularity curable under Sec. 537 of the Cr. P.C.

The test to be applied to determine whether a particular act or omission is an illegality or irregularity curable under Sec. 537 is laid down by the Privy Council in Pulukuri Kottaya vs. Emperor AIR 1947 P.C. 67. Their Lordships have observed in that case that:

When a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Sec. 537 and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code.

In the present case, it cannot be said that the trial is conducted in a manner different from that prescribed by the Code. The defect if any, is a defect in following certain provisions of the Code and constitutes an irregularity which is curable under Sec. 537 of the Code.

The further question that needs to be considered is whether there has been prejudice caused to the accused by reason of the omission on the part of the Magistrate to comply with the requirements of Sec. 251-A (3). The accused has complained that prejudice has been caused to him by the Magistrate''s failure to hear him before framing the charge. There is some force, I think, in this contention.

I accept the reference, set aside the charge and remand the case to the trial Magistrate with a direction to hear both the prosecution and the accused and then if, he is satisfied that there are grounds to presume that the accused has committed the offence for which he is being prosecuted, to frame a charge and to proceed further according to law.