Sessions Judge vs Raghavji Kanji of Junagadh

Chhatpar, J.—This is a reference by the Sessions Judge of Sorath for setting aside an order of conviction of the opponent Raghavji Kanji of Junagadh, of an offence u/s 323, Indian Penal Code, passed in a summary trial by the First Class Magistrate of Junagadh, and sentence of a fine of Rs. 60/-.

The Sessions Judge says that a retrial of the accused be ordered. The ground of the reference is that although this case was tried summarily, the procedure of a warrant case was to be followed, and Section 256, Code of Criminal Procedure required that the Magistrate should put a question to the accused whether he wanted to recall any of the witnesses examined by the complainant and for that purpose to give an adjournment, which the Magistrate did not do, but after the examination of the complainant and his witnesses was over, the accused was put on his defence.

The Sessions Judge says that this is an illegality which vitiates the whole trial, being disregarded of a-mandatory provision of law, and therefore a retrial should be ordered. The Sessions Judge has relied upon a decision of the Calcutta High Court in - Kamala Kanta Ghosh and Another Vs. Emperor, , a decision of the Sind Court in - Ghanshamdas v. Emperor'' AIR 1933 Sind 135 .(B) and a decision of the Madras High Court in Muthiah Pillai and Another Vs. Emperor, . These decisions no doubt lay down that a Court is not relieved of the obligation to follow the procedure laid down by Section 256, Code of Criminal Procedure in a case where the accused is tried summarily. But the Bombay High Court in - Umaji Krishnaji Sonavni Vs. Emperor, held a different view. Fawcett J. drew a distinction between a summary trial and a regular trial for the purpose of the application of Section 256 inasmuch as in a summary trial no formal charge is framed u/s 254 and read out and explained to the accused u/s 255. Therefore the subsequent Section 256 would not apply.

The learned Judge observed:

In my opinion, the fact that a formal charge is not framed in such a case makes a very material difference when considering the applicability of Section 256, because that Section clearly implies that the Court has had a charge read and questions put to the accused u/s 255, and that he has been called upon to plead to the charge. It is only then that the occasion arises under which the accused is required to state whether he wishes to cross-examine any of the prosecution witnesses further, and, therefore, strictly speaking, as no charge is framed and read and explained to the accused on his formal plea, I do not think that it can be contended that the provisions of Section 256 must apply in a case like the present. I do not want to go so far as to lay down that the provisions of Section 256 cannot properly be used in such a case, but what I do say is that the mere fact that there is an omission on the Magistrate''s part to ask this question is not a sufficient ground for holding that the proceedings and the trial are vitiated by illegality.

Supporting this judgment, Madgavkar J. added:

It is after a charge is framed that the accused can either refuse to plead or not plead or claim to be tried. Therefore, Section 256, which gives the accused the right of recalling witnesses, implies that there must be a charge framed in the first instance for the right to come into existence. The reason is clear. The charge gives clear notice of the mind of the Court prima facie on the materials as they exist; and in case the charge suggests to the defence any other witnesses or any further questions, that right is given. Where there is no such charge the defence has no other materials than it already possessed and the need to recall witnesses does not exist.

The Calcutta view of the necessity of following, the provisions of Section 256 even in a summary trial has been followed by the Nagpur High Court in - ''Munna v. Emperor AIR 1939 Nag 87 (E) and recently by the Vindhya Pradesh High Court in -''Ram Singh Rama Kant v. Dulare Kol Saman Kol AIR 1953 Vind 27 (F). On the other hand, the Bombay view has been followed by the Oudh Court in - ''Gokaran v. Emperor AIR 1932 Oudh 242 (G).

With respect we prefer to follow the Bombay view, which appears to be more reasonable and consistent with the interpretation of the Section when read together with the previous Sections 254 and 255. In any case the failure to strictly apply the provisions of Section 256 has been held by the majority of High Courts'' decisions to be a mere irregularity ; which can be cured u/s 537, Code of Criminal Procedure. On this point we may refer to the commentary of Chitaley and Rao on the Code of Criminal Procedure, 1950 Edition, pages 3008 and 3009, wherein the learned authors have discussed the conflicting rulings and expressed their opinion that irrespective of the question of prejudice the trial cannot be vitiated merely for non-compliance of the provisions of Section 256.

Even in the latest ruling of the Calcutta High Court in - Shib Chandra Ghosh Vs. The State, , it was observed:

There is no doubt that an accused has a right u/s 256, Code of Criminal Procedure to be called upon to enter upon his defence and adduce evidence. There is nothing before us to show that the accused who was represented by a learned lawyer, desired to adduce any evidence on his behalf. It is true that a duty is cast upon the Court which tries him to observe the provisions, of Section 256, Code of Criminal Procedure. The record shows that, in the previous trial the Petitioner had declined to call any evidence on his own behalf, and, therefore, the learned Magistrate did not formally ask the accused if he wanted to do so The omission to so ask the Petitioner, in our view, did not prejudice the accused... Looking at the matter all round, we are of the view that the charge against the Petitioner was amply proved and that in connection with the last trial no prejudice was in fact caused to him by not being asked formally if he desired to adduce evidence on his own behalf. In our view the omission complained of did not, in all the circumstances of this case, cause any failure of justice, and therefore we are not prepared tar this case to exercise our powers of revision.

In the present case, the learned Advocate appearing on behalf of the accused, has not even suggested that there was any prejudice caused to the accused by the failure of the Magistrate to put a question to the accused whether he wanted; to recall any of the witnesses examined by the complainant. Under the circumstances, we do note think it necessary to interfere and we therefore reject this reference.

Baxi J.

I agree.