Mastan Singh and Another vs The State

Passey, J.—Mastan Singh and his son Gurdial Singh were convicted by the trial Magistrate u/s 447, I.P.C. and sentenced to two months'' R.I. each. That order has been maintained by the learned Sessions Judge Sangrur, on appeal. It is urged in this revision that there has been a double defect in the trial of this case. Section 447, I.P.C. is a summons case and the learned Counsel for the State does not dispute that it was tried as a summons case, but neither the provisions of Section 242 nor those of Section 244 or Section 342, Code of Criminal Procedure were complied with. The procedure relating to the trial of summons cases is given in Chapter XX and the first step to be taken by a Magistrate on appearance of the accused before him is specified in Section 242, Code of Criminal Procedure That section enjoins that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause to show why he should not be convicted, but it shall not be necessary to frame a formal charge. No charge was framed against the Petitioners and they were not apprised of the particulars of the offence which they were alleged to have committed. They were also not asked if they had any cause to show why they should not be convicted. Section 243 which follows Section 242 can only come into play if the provisions of Section 242 have been complied with. u/s 243 if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.

Then comes Section 244 Clause (1) which says that if the Magistrate does not convict the accused under the preceding section (Section 243) or if the accused does not make an admission, the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produced in his defence provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. According to this section the Magistrate can proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution only when the accused does not make an admission of his guilt and the Magistrate decides not to convict the accused u/s 243, Code of Criminal Procedure Section 244 would, thus show that before resort can be had to its provisions for recording the evidence produced by the prosecution, the Magistrate must have decided not to convict the accused u/s 243, Code of Criminal Procedure The use of the word ''shall'' and the inclusion of Sections 243 and 244 in Chap. XX, Criminal P.C. should leave no doubt that the provisions of Section 242 are imperative and express in their nature and lay down an essential mode of trial so far as summons cases are concerned. Any disregard ox those provisions can hardly be regarded as mere irregularity. The very start in the in proceedings of the present case was in disregard of the procedure which, it was incumbent upon the trial Magistrate to follow.

It is the right of the accused when he appears before the Magistrate in a summons case, to be told as to what the particulars of the offence for which he has been summoned and which he would be required to meet are. It has to be enquired from him it he has any cause to show why he should not be convicted, and an omission to state to the accused the said particulars is obviously a grave failure to observe the mandate of law. The illegality, obvious as it would be if Section 242, Code of Criminal Procedure is ignored, would not be extenuated and converted into an irregularity by the mere fact that the accused has failed to prove that the omission of the Magistrate has affected him prejudicially as prejudice in law is obviously there. The failure to apprise the accused of what is required by Section 242, Code of Criminal Procedure to be stated to him must in my view affect the validity of the trial and vitiate it. The trial Magistrate did not even comply with the requirements of Section 244, Code of Criminal Procedure which provides that the Magistrate must after he has heard the complainant and taken all such evidence as may have been produced in support of the prosecution, hear the accused and take all such evidence as he produces in his defence. The production of defence evidence is to come after the accused has been heard. Bypassing the stage of hearing the accused and rushing to ask him to enter upon his defence is another illegality not of a trivial kind. Throughout the proceedings accused were not given an opportunity to make their statements nor to explain away the evidence that had been examined against them. The learned State counsel concedes that the accused must have been examined u/s 342, Code of Criminal Procedure and that Section 342 applied to summons cases as well. A discordant note in that behalf has been struck by - '' Ponnusami Odayar and Others Vs. Ramasami Thathan, and - ''Emperor v. Ngala Gyi'' AIR 1931 Rang 244 but the view of all other High Courts in India is uniformally to the effect that Section 342, Code of Criminal Procedure is as much applicable to summons cases as to warrant cases. See - Emperor Vs. Kondiba Balaji, - ''Kandhai v. Municipal Board, Rae Bareli'' 177 Ind Cas 56 (Oudh)(D); - ''Demello v. Mrs. Demello'' AIR 1926 Lah 667 ; - ''Bhagwan v. Emperor'' AIR 1926 Nag 300 ; - Sia Ram and Others Vs. Emperor, Gulzari Lal Vs. Emperor, - ''Gulam Rasul v. Emperor'' AIR 1921 Pat 11 and - ''Emperor v. Nabu'' AIR 1926 Sind 1 Failure to examine the accused u/s 342 is another glaring illegality which must at any rate vitiate the trial from the stage the error occurred.

I consequently accept the revision, set aside the conviction of the Petitioners and remand the case to the Magistrate 1st Class Sangrur, for retrial in accordance with law. Parties through their counsel have been directed to appear in the Court of the Magistrate 1st Class Sangrur on 8-9-1952.