Sadananda Das and Others vs The State of Assam

K.N. Saikia, J.—This criminal revision is directed against the judgment and order of the Sessions Judge, Gauhati dated 2.2.78 in Criminal Revision No. 24 (K-2) 1977 setting aside the order of discharge passed by the Judicial Magistrate 1st Class, Barpeta in G.R. Case No. 73 of 1976.

In the said case the prosecution alleged that all the three accused persons committed criminal trespass into the house of one Jagannath Sharma, assaulted him and tore off his sacred thread (Lagun) to insult his religious sentiment and also wrongfully confined him in the house of one Chandra Kanta Pathak. after investigation police submitted charge-sheet against the accused persons, who are Petitioners before me, under Sections 448, 352, 295 and 342 I.P.C. The learned Magistrate by his order dated 28.2.77 discharged the accused persons u/s 239 Code of Criminal Procedure. On revision there from the learned Sessions Judge by the impugned order allowed the revision petition and set aside the order of discharge and remanded the case for further enquiry and trial according to law. Hence this revision petition.

The learned Sessions Judge allowed the revision on the ground that the offences under Sections 448, 352, 235 and 342 I.P.C. are triable as summons cases under Chapter XX Code of Criminal Procedure. Section 239 Code of Criminal Procedure, under which the accused have been discharged comes under warrant procedure. The learned Sessions Judge accordingly observed that the learned Magistrate should have adopted summons procedure beginning with Section 251 Code of Criminal Procedure and should have tried the case under summons procedure, and that the learned Magistrate could adopt warrant procedure by recording reasons u/s 259 Code of Criminal Procedure. As no reason was recorded, the procedure adopted was held to be not in accordance with law and the order was set aside.

There is no dispute that the sections with which the Petitioners were charged, namely, 448, 352, 295 and 342 I.P.C., are triable under summons procedure. Section 259 Code of Criminal Procedure confers power on the Court to convert summons cases into warrant cases. When in the course of the trial of a summons case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant cases, such Magistrate may proceed to re-hear the case in the manner provided by the Code of Criminal Procedure for the trial of warrant cases and may re-call any witness who may have been examined, to the instant case it does not appear from the record that the learned Magistrate proceeded in accordance with the requirement of Section 259 Code of Criminal Procedure.

Section 259 Code of Criminal Procedure is a new section added by the Joint Committee of Parliament. While suggesting addition of this Section the Joint Committee observed that the Magistrate should have the power to convert a summons case into an warrant case in serious cases if be considers it necessary to do so in the interest of justice. Need for this has arisen particularly because under the Bill the scope for adopting summons case procedure has been enlarged. In the instant case it does not appear clearly from the order as to whether the case was started under summons procedure and later on converted to warrant procedure. It would appear from the opening clause of Section 259 that prima facie the Magistrate is empowered to resort to the procedure of warrant case, in the course of a trial of the summons case, when, according to him, in the interest of justice the offence should he tried in accordance with the procedure for the trial of warrant cases. It is possible to take a view that the Magistrate can resort to this section not from the inception but after the trial has begun and he feels that in the interest of justice the offence should be tried in accordance with the procedure for the trial of a warrant case. The last clause in the Section which provides that such Magistrate may proceed to re-hear the case in the manner provided by the Code for the trial of warrant case and may re-call any witness who may have been examined shows that the Magistrate could start the trial as a summons case. When it is not clear from the impugned order whether the provisions of Section 259 Code of Criminal Procedure were followed, it would be in the interest of justice to set aside an order of discharge passed by the Magistrate, discharging the accused persons in a summons case tried as a warrant case. I am supported in this view by a decision of the Bombay High Court reported in Ganesh Narayan Dangre Vs. Eknath Hari Jhampe and Others, where the Magistrate discharged the opponent u/s 249 Code of Criminal Procedure in a summons case tried as a warrant case. It has further been observed that apart from the powers conferred by Section 397 on the High Court it would be a it case for passing appropriate orders under the inherent powers of the High Court.

For the reasons discussed above when the learned Sessions Judge has set aside the impugned order and remanded the case for trial in accordance with law, either as a summons case or as a warrant case or in accordance with Section 259 Code of Criminal Procedure, I find no sufficient ground for interference with that order in revision. This revision petition is accordingly found to be without merit and it is dismissed. The Rule is discharged. The stay order dated 26.4.78 stands vacated.

Petition dismissed.