K. Gopinatha Pillai vs P. V. Pappachan and 2 others

T. C. Raghavan, J.—The Sub Divisional Magistrate, Adoor tried summarily a case for offences under sections 342 and 323 of the Penal Code against three accused persons and convicted two of them for the offence u/s 342 and sentenced them to pay a fine of Rs.100/- each. He acquitted them of the offence u/s 323 and he also acquitted the third accused of both the offences. The convicted persons took up the matter in appeal before the Sessions Judge of Quilon and argued before him that the summary trial by the Sub Divisional Magistrate was without jurisdiction and therefore, the convictions and sentences should be set aside. The Sessions Judge has accepted this argument and has referred the case u/s 438 of the Code of Criminal Procedure to this Court for appropriate action. u/s 260 of the Code of Criminal Procedure, a District Magistrate, and any Magistrate of the First Class if he is specially empowered in this behalf, may try any of the offences mentioned in the section summarily. The offence u/s 342 is not one of the offences mentioned in the section and the offence under 323 is included in the section. In this case, the Sub Divisional Magistrate has acquitted the two accused persons u/s 323 and has convicted them u/s 342. The action of the Sub Divisional Magistrate in trying a case u/s 342 is obviously without jurisdiction, because, in spite of his having been authorized to try summarily the cases he can try summarily are only those cases mentioned in section 260, Criminal Procedure Code. He has no jurisdiction to try a case summarily which is not allowed to be tried summarily by section 260; and if he does so it is without jurisdiction.

This conclusion appears to be fairly clear. However, I may add two decisions which support this view. The first is M.W. D'' Souza v Annappa Sheregara (1932 Madras Weekly Notes 478) by the Madras High Court. In that case the offences were under sections 342 and 323 of the Penal Code; and the High Court held that the whole proceeding was without jurisdiction. The other case is Ram Nandan and Others Vs. The State, by the Allahabad High Court. In that case the accused was tried summarily for an offence under the Essential Commodities Act and was acquitted. But, when the Magistrate realized his mistake (the summary trial), he sought to try the accused again for the same offence. Objection was then taken by the accused u/s 403 of the Criminal Procedure Code that he could not be tried for the same offence a second time, since he was tried and acquitted for that offence once before by a competent court. It was then argued by the State that section 403 was no bar, because the previous summary trial by the Magistrate was without jurisdiction, so that it was null, void and non esse. This argument was accepted by the Magistrate and was ultimately confirmed by the Allahabad High Court.

Therefore, it is clear that the summary trial by the Sub Divisional Magistrate was without jurisdiction; and the conviction and sentence passed by him have necessarily to be set aside. The Public Prosecutor then pleads that the case may be sent down and the Sub Divisional Magistrate be directed to try it properly. I do not think that a retrial is called for in this case.