Munshi Teli and Others vs Emperor

Jwala Prasad, J.—The Rule must be made absolute. The trial of the accused by the procedure laid down for summons-cases has bean illegal, irregular and prejudicial to the accused. Both the complaint petition and the examination of the complainant on oath disclosed offences under Sections 504 and 352, Indian Penal Code. These sections were expressly mentioned in the complaint petition. The former is a warrant-ease and the latter a summons-case, The Magistrate summoned the accused under the former section as expressly mentioned in the order-sheet as well as in the summons to the accused. The accused accordingly appeared and the trial commenced on the 17th of July as a warrant case. Two witnesses for the prosecution were examined and the statement of the accused was recorded and the judgment was at once recorded and the accused convicted u/s 352, Indian Penal Code.

The accused put in a petition saying that their witnesses cannot come without summons and asked for issue of summons and the adjournment of the case for some other date for the defense, The Magistrate wrote on the petition the following order: "Filed when I was in the midst of judgment. No order as regards this petition appears in the order sheet. In fast, the entire order of the 17th of July is in the following terms: "Examined complainant and two witnesses. Statement of the accused taken. Accused convicted." This is, no doubt, a very quick disposal and saving of time of the Magistrate. But this has, however, resulted in the failure of justice and the accused have been deprived of the opportunity to meet the charge, of which they have been convicted. The Magistrate justifies his action in the explanation submitted to this Court, that "after recording the examination-in-chief of the complainant, it appeared" that the offense complained of was not u/s 504, Indian Penal Code, bat that it was an offence u/s 352, Indian Penal Code, which is a summons case, and as such the procedure for the trial of summons-sage was adopted...the substance of the accusation was, however, made known to them and their statements were duly recorded provided in Section 342 Criminal Procedure Code, the mukhtears having been tally informed that, the case was being dealt with u/s 352, Indian Penal Code."

Admittedly, therefore the trial was commenced as a warrant-case u/s 504, Indian Penal Coda, which the accused were gammoned to meet. The trial should have been concluded by the procedure laid down for warrant-cases under Chapter XXI of the Code. To adopt the procedure for summons cases under Chapter XX so suddenly and to conclude the trial forthwith on immediate notice being given to the accussed, is not justified by any express law nor any known principle in criminal jurisprudents. The fast that the accused were asked to some with their witnesses, does not do away with the procedure laid down in Chapter XXI, notably the accused being sailed anon to enter into their defense and to adduce defence witnesses. In any case, the accused were highly prejudiced by the refusal of the Magistrate to give them an opportunity to produce their witnesses by giving them an adjournment, even if the case was triable as a summons-case. The authorities are numerous on this point. The principle may be gathered, however, from the following cases:

Raghuvalu Naicker v. Singaram 45 Ind. Cas. 517 : 34 M.L.J. 369 : 7 L.W. 520 : 19 Cr.L.J. 613 : 41 M. 727 : (1918) M.W.N. 827, Rajnarain Koonwar v. Lala Tamoli Raut 11 C. 91 : 5 Ind. Dec. (N.S.) 819, King Emperor v. San Dun 2 Cr.L.J. 739 : 3 L.B.R. 52 (F.B.), Bhowanathi Singh v. Emperor 43 Ind. Cas. 618 : 4 P.L.W. 40 : Cr.L.J. 202 and Mahomed Zamiruddin v. Emperor 47 Ind. Cas. 274 : 3 P.L.J. 632 : 19 Cr.L.J. 902.

To my mind, the trial of the accused has been illegal and irregular. The accused were taken by surprise. They same to meet the charge u/s 504, Indian Penal Code. In the midst of the trial, they were told that they were being tried as a summons-case u/s 352, Indian Penal Code. Section 244 requires the Magistrate, after the close of the prosecution case, "to hear the accused. and take all such evidence as he produces in his defence". Under Clause (2), the Magistrate may issue process to compel the attendance of the defence witnesses. The Magistrate did not use his discretion judicially and properly in refusing the petition of the accused to summon their defence witnesses, filed on the 17th. There is nothing in the order-sheet to indicate that the Magistrate complied with Clause (1) of Section 244. That the accused were prejudiced is apparent from the observation of the learned Sessions Judge in the last paragraph of his judgment, dated the 9th August 1920, in the appeal of the petitioner (Criminal Appeal No. 7 of 1920). I would quote one passage from it: "in the absence of any satisfactory evidence on the side of prosecution, I am not in a position to say that the defence put forth as to the cause of: assult was not a correct one. If that be the case there was, at least, grave provocation on the side of the accused". To the same effect is the following remark of his in his order dated the 11th August in Criminal Revision No. 15 filed by petitioners Nos. 2 and 3: "There is also evidence, though, not of a very satisfactory character, that the petitioners committed the offence. The trial must be set aside." In the circumstances of the case, regard being had to the remarks of the learned Sessions Judge, to the harassment already caused to the accused by the unwarrantable method adopted by the Magistrate, to the petty nature of the offence, to the defence story as to the cause of the assault being true, to the prosecution suppressing this cause to the prisoner No. 1 already having been in jail for four days, and to the small fine of Rs. 10 imposed, I would not direct any re-trial, but would set aside the conviction and acquit the accused. The fine, if already realised, will be refunded.