In Re: K.V.M. Parameswarayya

Govinda Menon, J.—This is a reference by the District Magistrate at South Kanara requesting this Court to set aside the conviction of the

accused under S. 387 , Penal Code, by the Stationary Sub-Magistrate, Puttur, in o. o. no. 352 of 1948 and to order a further enquiry against the

accused foe an offence u/s 307, Penal Code, which according to the evidence adduced, is, in the opinion of the District Magistrate, the offence

committed by the accused. My learned brother Bajagopalan J. in issuing notice to the Public Prosecutor, made the following observation:

Rule 269, Criminal Rules of Practice has not been complied with. There was no call for an explanation from the Sub-Magistrate by the District

Magistrate. No doubt it is unlikely the Sub-Magistrate will have anything to add to the lengthy explanation he furnished to the Sub-Divisional

Magistrate.

It is virtually a question of appreciation of evidence-mainly of oral evidence.

Notice may be ordered to the Public Prosecutor and the ease posted before a single Judge.

After the entire records were translated, the matter now comes up for passing orders.

The charge sheet filed against the accused was for an offence u/s 307, Penal Code, in that he attempted to murder his son P. W. 1 by shooting

him with a single barreled muzzle loading gun at a distance of 8 yards with such intention or with such knowledge and under such circumstances

that if, by that act, he had caused the death of P.W. 1 , the act would have amounted to murder.

15 witnesses were examined on the side of the prosecution and two for the defence. Though the inquiry originally began as a preliminary register

case, during its progress, the Sub-Magistrate was of opinion that the only offence that was committed on the evidence placed before him was

under S. 337 , Penal Code, and thereafter a charge was framed under that provision of law and the accused further questioned. Accepting in

particle the statement of the accused and the evidence of the two witnesses examined for him, the Court of first instance convicted him of an

offence as stated above and sentenced him to pay a fine of Rs. 200. The Sub-Divisional Magistrate of Puttur, on perusing the calendar of this case

in his administrative capacity called for a report from the Sub-Magistrate on the various questions raised by him and wanted the Sub-Magistrate to

state why the case was converted as a calendar case and the accused convicted only of a minor offence. In answer to this, the Sub-Magistrate

submitted a lengthy explanation stating the reasons for the course adopted by him. He also expressed his conclusion regarding the credibility of

various portions of the prosecution evidence and why the whole of it should not be accepted. The Sub-Divisional Magistrate was not satisfied with

the explanation and, therefore, submitted the papers to the District Magistrate who, after expressing his view, has referred the whole matter to this

Court.

My learned brother Bajagopalan J. has not issued notice to the accused at all and in the circumstances if I were inclined to agree with the

expression of opinion made by the Sub-Divisional Magistrate and the District Magistrate, u/s 439, of (2), Criminal P. C, it would not be legally

possible for this Court to pass any order to the prejudice of the accused unless he has had an opportunity of being heard either personally, or by

pleader. Such being the case, I have to issue notice to the accused before passing an order to his prejudice; but for the reasons which will be given

presently, it seems to me that no further action is necessary in this case.

When the Sub-Magistrate framed a charge u/s 337, Penal Code and did not frame one under S. 307 , Penal Code, his action amounted to a

discharge of the accused of an offence under the latter section. In that case, it is open to the District Magistrate under Sections 436 and 437,

Criminal P. C, either to order a further enquiry or to order commitment to the Court of Session. The fact that the Court of first instance has

convicted the accused of an offence under 8. 337i Penal Code, will not in any way interfere with the order of discharge u/s 807, Penal Code.

''Section 403, Criminal P. C., is clear to the effect that the conviction or acquittal of a person of a minor offence is no bar to the further trial of

the same person for a more serious offence which might include the ingredients which already constituted the offence under the minor section. The

facts arid circumstances which according to the Court of first instance constituted the offence u/s 337, Penal Code, along with other ingredients

might constitute an offence under S. 307 , Penal Code, and there is no prohibition in law in trying the accused for the more serious offence, the

conviction u/s 337, Penal Code, not being a bar. The District Magistrate, if he had been so inclined, could have himself ordered a further enquiry

for the offence u/s 807, Penal Code, instead of making the reference which is the subject-matter of discussion now.

But the learned Public Prosecutor contends that as the case depends mostly, if not solely, on the appreciation of oral evidence, it is very unlikely

that on the evidence as it stands, any Court will come to a conclusion that the accused will be guilty of an offence u/s 307 , Penal Code. He places

particular reliance on the evidence of p. ws. 12 and 13 and contends that since injuries nos. 18 and 11 could only be caused by the bullet striking

against something and deflecting at an angle to the right or to the left, not necessarily at right angles, it would be impossible that a shot fired at such

a close range as eight yards would have been the cause of the injuries on p. w. 1. The evidence of v. Ws. 12 and 13 is clear that the injuries could

be caused by one gun-shot passing through a window within a range of 21 feet. According to the learned Public Prosecutor, if the gun was fired at

such a short distance, there could not have been this deflection. Moreover, it is pointed out by the learned Public Prosecutor that there are other

infirmities in the prosecution evidence which the Court of first instance had rightly taken into consideration. I am inclined to agree with these

contentions. I would, therefore, hold that no further action is necessary, The records are returned to the District Magistrate, South Kanara.