Sheikh Mohsin and Others vs Emperor

Dhavle, J.—This is an application in revision by four petitioners who have been convicted u/s 448, I.P.C., and sentenced, two of them to fines of Rs. 30 each and the other two to fines of Rs. 15 each. The trial was summary. The petitioners moved the Sessions Judge for referring the case to this Court, and the points urged before him were that the trial was bad because the Magistrate had not complied with certain requirements of Section 263, Criminal P.C. Clouse (b) of that Section requires the date of the commission of the offence to be entered in the prescribed form, and it is pointed out that this was not done. It does not seem to have been urged before the Sessions Judge that this defect, such as it was, had led or could possibly have led to any prejudice or failure of justice so as to warrant the quashing of the conviction.

A consideration to be borne in mind since the decision of their Lordships of the Judicial Committee in AIR 1927 44 (Privy Council) . In Emperor Vs. Ermanali and Others, , a Full Bench decision of the Calcutta High Court, Rankin C.J., pointed out how the Criminal P.C., is a long list of imperatives like the word "shall," some of which have reference to matters which are in no way vital and many of which are directed to minor incidents of procedure. But for Section 537, there would be grave disadvantages in a Code which makes statutory so many and so various requirements. That Section obviates the difficulty which would arise by reason of all irregularities bearing the character of transgressions of statute.

The learned Chief Justice pointed out how, in view of difference of opinion in India, the Judicial Committee had in the Rangoon case carefully explained and applied Section 537 "for the guidance of the Courts," and how that decision must now govern the interpretation of the Section unless and until the Legislature shall see fit to amend the Section. Another defect that was pointed out was the failure of the Magistrate to show the value of the property as required by Clause (f) of Section 263.

The petitioners had been put on trial for offences under Sections 418, 379 and 323, and though they were sentenced u/s 448 only, the trial u/s 379 did call into operation Clause (f) of Section 263. As to the omission to enter this detail, reliance was placed on Brij Nandan Pandey v. Emperor AIR 1922 Pat 227, a ruling (be it noticed) of 1922, long before the decision of their Lordships of the Judicial Committee in the Rangoon case. Ross J. who decided the case in question purported to follow Queen v. Abheen Parrida (1873) 20 WR Cr l7, a case in which a summary conviction of theft was set aside because in the prescribed form the value of the stolen property was not mentioned, nor did it anywhere appear what the value of the property alleged to have been stolen really was.

In the case before Ross J., there was a charge sheet which showed "P.S. Rs. 10" and "P.R. Rs. 10" from which it was argued that the property in respect of which the offence was committed was valued at Rs. 10. The learned Judge however found that the Magistrate had not directed his mind to the question of his jurisdiction to try the case summarily as being dependent on the value of the property stolen not exceeding Rs. 50, and in this view he set the conviction aside. It will be seen at once that this is not what had Happened in 20 WR Cr 174 for, there the learned Judges found that it did not appear anywhere what the value of the property alleged to have been stolen really was.

In the present case the proceedings began with a first information lodged with the police by Mt. Hamudan, and in this first information the offence complained of is shown as "house trespass and theft of grain worth Rs. 5-12-0 under Sections 448, 379, I.P.C." Mr. Rajeshwari Prasad for the petitioners has contended that the first information is no part of the record of the case. But this will be so only if the form prescribed u/s 263 is regarded as the whole record of the case for all purposes. A good deal of public work however is generally unavoidable before a Magistrate begins his trial under Chap. 22, Criminal P.C., as cognizance cannot be taken without materials, and unless the trying Magistrate is empowered to take cognizance u/s 190, Criminal P.C., (and many Magistrates in this province ate not), reference to papers other than the form prescribed u/s 263 becomes necessary if it is desired to find out how the trying Magistrate came to handle the case at all.

The learned advocate cited Emperor v. Salig Ram AIR 1926 Lah 301 in support of the proposition that in a case coming u/s 264, Criminal P.C., the judgment and judgment alone is the only record. This is undoubtedly supported by Sub-section (2) of Section 264, and was used by the learned Judge of the Lahore High Court in support of the view that it is not necessary to frame a charge in a case tried summarily in which an appeal lies. But we are not concerned in the present case with Section 264, Criminal P.C., to say nothing of the fact that even in cases coming within that Section, it might become necessary for certain purposes to refer in revision to the papers preliminary to the summary trial.

The trying Magistrate in the present case ought, of course, to have complied with the requirements of Clause (f) of Section 263, but knowing as we do that he must have had the first information report, &c, in the case before him, it seems to me impossible to assume that there was a real defect of jurisdiction in the present case by reason of the property alleged to have been stolen exceeding Rs. 50 in value. No such suggestion was made below, and the mere failure to enter the value in the form does not suffice to raise any question of possible or probable prejudice or failure of justice, the governing factor in Section 537, Criminal P.C.

Yet another defect urged on behalf of the petitioners is the failure of the Magistrate to sign the memorandum of evidence of each witness. In support of this is cited Balkeshwar Singh v. Emperor AIR 1922 Pat 5, in which it was observed that in a summary trial of a warrant case the Magistrate is bound to make a memorandum of the substance of the evidence of each witness and to sign the said memorandum as required by Clause (2) of Section 355. Jwala Prasad J., who made the observation referred to Section 264, Criminal P.C., as prescribing the mode in which the record of the evidence of witnesses was to be prepared. But the Section that applies in the present case is Section 263 which provides that in cases where no appeal lies, the Magistrate or Bench of Magistrates, need not record the evidence of the witnesses; and as was pointed out in Satish Chandra Misra v. Manmatha Nath Mitra AIR 1921 Cal 165, this provision must be read as an exception to the general provision contained in Section 355(1). Moreover, even if it be assumed that this does not save the Magistrate from making, a memorandum of the substance of the evidence of each witness, the failure of the Magistrate merely to sign his memorandum cannot be regarded, since the decision of their Lordships of the Privy Council in the case from Satish Chandra Misra v. Manmatha Nath Mitra AIR 1921 Cal 165, as sufficient by itself, to vitiate the conviction.

In my opinion, the points raised on behalf of the petitioners are no more than irregularities which ought not to have been committed. So far as they involve definite breaches of the requirements of the law, they are to be deprecated, but "unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned," they are not enough to warrant the quashing of the conviction. The application in revision is therefore dismissed.