C. Jagannadhacharyulu, J.C.
1. This is a Criminal Revision Petition filed under Section 439 Cr. P.C. to set aside the judgment of the Assistant Sessions Judge. Tripura, dated 4-11-1965 in Criminal Appeal No. 38 of 1964 on his file, up-holding the conviction of the petitioner under Section 323 I.P.C. and the sentence to pay a fine of Rs. 25/- or in default to suffer S. I. for '10 days, passed against the petitioner Sishir Kumar Deb by the Second Class Magistrate in Khowai in Criminal Case No. 311 of 1963 on his file.
2. The petitioner and another person Makhan Deb were prosecuted by P. W. 1, the complainant (Sachindra Ch. Deb), in Criminal Case No. 311 of 1963 on the file of the Second Class Magistrate of Khowai for an offence under Section 323 I, P. C. read with Section 114 I.P.C on the ground that the Complainant P.W. 1 (Sachindra Ch. Deb) was a tenant in respect of a hut with an attached godown in Khowai of the accused Makhan Deb, that on 25-12-1963 P. W. 2 (Makhan Lal Das) an employee of P. W. 1 got up on the roof of the godown to collect empty bags, that under the orders of the accused Makhan Deb, the petitioner Sishir Kumar Deb threw brickbats at P. W. 2 (Makhan Lal Das) and that they hit him on his head and one of his legs causing bleeding injuries.
3. The complainant (Sachindra Ch. Deb) examined himself as P. W. 1 and his witnesses Makhan Lal Das. Chitta Ranjan Paul, Subodh Chandra Kar. Harendra Saha and Girindra Chandra Deb as P. Ws, 2 to 6, The Second Class Magistrate found Makhan Deb guilty of offence 'under Section 114 I.P.C.' (though it is not a substantial offence) and the petitioner guilty of the offence under Section 323 1. P. C. and sentenced them to pay fine of Rs. 25 each or in default to suffer S. I. for 10 days.
4. Both the accused carried the matter in appeal, which was disposed of by the learned Assistant Sessions Judge, Tripura in Agartala in Criminal Appeal No. 38 of 1964. The learned Assistant Sessions Judge held that no case was made out against Makhan Deb and that his conviction under Section 114 I.P.C., which is not a substantial offence is illegal and allowed the appeal so far as he is concerned and acquitted him. But. so far as the petitioner is concerned he dismissed the appeal and affirmed his conviction under Section 323. I.P.C. Hence the present Criminal Revision Petition.
5. The only point which was argued by the learned Counsel for the petitioner is that the trial of the petitioner and his conviction are illegal for want of his examination under Section 242 Cr P C,
6. The learned Second Class Magistrate should have correctly followed the procedure laid down by Chapter XX of the Criminal Procedure Code, since the offence under Section 323, I.P.C. is triable as a summons case. Section 242 Cr. P.C. lays down that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, that he shall be asked if he has any cause to show why he should not be convicted, but that it shall not be necessary to frame a formal charge. Section 242 Cr. P.C. is mandatory in its provisions. But, the record of the trial Court shows that the Magistrate did not reduce to writing the examination of the petitioner and his co-accused, as required by Section 242 Cr. P.C. His order No. 2 dated 30-12-1963 reads that both accused appeared before him, that he examined them under Section 242 Cr. P.C., but that they pleaded not guilty. The order further shows that he enlarged the accused on bail and posted the case for trial. But, actually their examination was not reduced to writing.
7. With regard to this objection, the learned Assistant Sessions Judge stated in his judgment that though the Magistrate should have reduced to writing the examination of the accused under Section 242 Cr. P.C.. the latter does not contemplate that the examination of the accused should be reduced to writing, but that it is enough if the accused were appraised of the substance of the accusation on their appearance under Section 242 Cr. P.C., but that, however, it is advisable that the examination of the accused under Section 242 Cr. P. C, should be reduced to writing, so that the superior Courts can judge whether the substance of the accusation was properly stated to the accused or not. He further states in his judgment that, at any rate, as the accused were examined under Section 342 Cr. P.C., they were appraised of the accusation and that therefore the trial was not vitiated.
But, as no charge is framed in a summons trial, the only opportunity the accused has, when he appears before the Court to know what the accusation against him, is when the statement of the particulars, which the Magistrate is in law bound to explain to the accused, is put to him The requirement of the law under S 242 Cr. P.C. is the performance of a judicial act, It is not a mere formality, It is essential that the accused must know before the trial proceeds what the accusation against him is. which he is to meet. It is necessary that the accused must know, firstly that he is about to be put on his trial and secondly the offence or facts constituting the offence, with the commission of which he is accused. It is not sufficient for a Magistrate to simply mention in the order-sheet that he examined the accused under Section 242 Cr, p, C. The superior Courts must be in a position to know what the particulars were put to the accused and whether they were correctly put to him or not. There cannot be some verbal examination. Vide also Mulkraj Bodhraj Chabra v. Nagpur Municipal Corporation : AIR1965Bom30 .
8. With regard to the non-compliance of Section 242 Cr. P.C. there is conflict of opinion between the various High Courts as can be seen from Note 8. pages 1635 and 1636 of Sohoni's Criminal Procedure Code, 16th Edition. Vol II. A reading of S 242 Cr, P. C, however shows that it is mandatory and that the examination of the accused is imperative, because the word used is 'shall'. Even otherwise, the accused must he held to have been prejudiced, since according to the petitioner's Counsel, the particulars of the offence were not properly stated to him before the trial commenced. There is nothing on record to judge whether the Magistrate put all the particulars of the offence to the petitioner or not. There is also nothing on record to show what particulars were put to him. In this case besides the petitioner another person was also charged along with him for abetment, So. it cannot be surmised what exactly were the particulars which were put to each accused The Magistrate was bound to record the particulars put by him and the statement of the accused under Section 242 Cr. P.C. The subsequent examination of the petitioner under S . 542 Cr. P C. does not cure the irregularity committed by the Magistrate at the very outset.
9. The learned Counsel for the petitioner also argued that the Medical Officer was not examined, though he stated that he did not want to submit any argument on the facts. It is not necessary to consider the effect of the non-examination of the Medical Officer, in view of my finding on the legal point raised before me.
10. In the result, the Revision Petition is allowed and the conviction of the petitioner under Section 323 I.P.C. and the sentence imposed on him are quashed. Refund the fine, if already collected. A copy of this judgment shall he sent to Shri K. R. Ghosh Roy, Magistrate Second Class. Khowai for his future guidance.