Ram Singh and Rama Kant vs Dulare Kol and Saman Kol

Krishnan, J.C.

This is an application in revision from a conviction on a summary trial u/s 447, I.P.C., with a fine of Rs. 75/- and imprisonment in default. The trial itself was under Sections 447 and 323, I.P.C., but the applicant has been acquitted of the latter charge. The applicant has urged two points: firstly, that the land in dispute was given back into his possession, and secondly that he was not given an opportunity to cross-examine after charge.

It is necessary to consider only the point of law. I note that there was cross-examination before charge but there was none after it. A summary trial under Chap. 22 is summary only in regard to the manner of recording evidence and noting the substance of the charge, if any. The rights given to the accused under the earlier Chapters, 20 for the summons case trial and 21 for the warrant case trial, are not, in any manner abbreviated. Section 263 makes this quite clear.

Therefore, even in a summary trial for a warrant case such as u/s 323, I.P.C., cross-examination after charge has to be allowed. When the charge is framed or the substance is noted, the accused should be asked to plead; if he refuses and claims to be tried he should be called upon to state whether he wants to cross-examine any of the witnesses; such of those that he wants to cross-examine should be called for it. Usually this is done on an adjourned date to enable the accused to prepare; but the Magistrate may, for reasons to be recorded call for immediate cross-examination. Where immediate cross-examination after charge has been insisted upon, without reasons being recorded, it can be urged that this irregularity is one curable u/s 537, Cr.P.C. But where the accused has not at all been invited to cross-examine after charge, in a warrant case, then there is an obvious illegality. This has been pointed out in a ruling reported in - Kamala Kamala v. Emperor AIR 1943 Cal 80(A).

The position in this case is that the accused was not invited to cross-examine after charge.

It is unnecessary at the stage to consider the merits of the applicant''s defence on the facts.

The conviction and sentence are set aside and the fine, if paid, is ordered to be refunded. The case should go back to the Magistrate to be taken up at the stage at which the charge was framed or its substance noted, for proceeding u/s 256, Cr.P.C. The applicant should give bail of Rs. 200/- for appearance before the Magistrate within 15 days after this order.