Mohammad Ishaq and Others vs Emperor

Jwala Prasad, J.—The four petitioners have been convicted u/s 323, Indian Penal Code, and sentenced to pay a fine of Rs. 40 each, The learned Vakil on behalf of the petitioners urges that the conviction is bad, firstly, because the accused should not have been tried summarily; secondly, because the depositions of the witnesses were not read over to them, and, thirdly, because the evidence of the alibi on behalf of the petitioner No. 3 Sadullah was not considered.

The petition of complaint clearly discloses an offence u/s 323, Indian Penal Code, although Sections 147 and 447, were mentioned. The Magistrate, therefore, summoned the petitioners u/s 323, Indian Penal Code, only.

The offence same u/s 323 only which is triable summarily, vide Section 260, Sub-clause 1(c) of the Code of Criminal Procedure.

On the 22nd of August, the date fixed for the examination of the witnesses, a petition was filed on behalf of the accused admitting that the case was triable summarily and praying that, in view of the fact that the dispute related to the land, the accused should be tried in a regular way. The Magistrate refused this petition on the ground that the cafe was purely of morpit. Though there was a dispute concerning land, yet the occurrence took place when a Panchayat was sailed in order to settle the dispute and at the time nothing was pending in connection with the land. There was nothing in the character of the dispute between the parties which rendered it desirable that the case should not have been tried summarily and, therefore, Sub-section (2) of Section 260 did not apply. The trial was, therefore, not illegal or irregular.

As to the second ground, a reference be made to Section 355 of the Code of Criminal Procedure which does not require that the evidence of witnesses should be read over to them in a case triable summarily. Section 360, which requires the evidence to be read over to the witnesses, applies only to Sections 356 and 357 and does not apply to Section 355. This contention also is, therefore, unsubstantial.

As to the third ground, true, the petitioner No. 3 examined two witnesses for defence. The first witness expressly stated that be had no personal knowledge as to where the accused Sadullah was on the date of occurrence (7th of July 1921). Similarly, witness No. 2 stated that he could not give the date of service of Court process on Musaddi Mandal. This evidence was not at all an evidence of alibi. It does not appear from the judgment of the Sessions Judge that any reference to the alibi evidence was made before that Court in argument. This contention is also overruled.

The result is, that the application is dismissed.