1. The petitioner Naran Veljl is a boy about nine years old. On 28-2-1953, at about 4-15 p.m. he was knocked down by a motor vehicle driven by one Ranjitsingh Jamnadas Kapadia, Thereafter a complaint was lodged before the police against Kapadia charging him with having driven his motor vehicle rashly and negligently. The police treated the case as one of 'accident', and did not take any proceedings against the accused on the complaint. A private complaint was then filed in the Court of the Presidency Magistrate, 16th Court, Bombay, charging the accused with having committed offences under Sections 279 and 338, Penal Code. The learned trial Magistrate alter examining the complainant & two witnesses and after examining the accused passed an order on 17-11-1953, acquitting the accused. Against the order of acquittal passed by the learned trial Magistrate, the complainant has come to this Court in revision.
2. Normally, this Court does not interfere in its re visional jurisdiction with orders of acquittal passed by subordinate Courts. The Criminal P. C. provides for a right of appeal by the State against orders of acquittal, and when the State declines to prefer an appeal, this Court is unwilling to exercise its revisional jurisdiction except where a question of principle arises or it appears that manifest injustice has been done by disregarding statutory rules of fundamental importance in criminal trials. In my view interference by this Court is called for in this case because the learned trial Magistrate has maintained no record at all of the evidence and the plea of the accused.
It 'is asserted on behalf of the accused that the learned Magistrate was not bound to maintain any record of the evidence and this Court in the exercise of its revisional jurisdiction is incompetent to review his discretion, even if there are no materials before, this Court which would enable it to adjudicate upon the contention of the complainant that there has been no real trial of the complaint filed by him. I have before me at page 11 of the paper book the entire record maintained by the learned Magistrate of the trial of this case. The record consists of the- name of the Court, the names of the parties, a statement setting out the numbers of the sections of the Penal Code under which the accused was charged, a statement that the accused pleaded not guilty, the names of the advocates for the parties, and is followed by :
'Naran Velji on S. A.
Charge u/s. 279 and 338, I. P. C. Accused pleads not guilty. Naran Velji on S.A.
Naran Velji on S. A.
Velji shamji on S.A. '
Ramji Vishram on S. A. .
Accused examined u/s. 342, Cri P.C.'
and is followed by the order of the learned Magistrate. There is no indication anywhere in the record as to what those hyphens occurring with uniform regularity following the names of the three witnesses are intended to convey.
3. Section 362 of the Criminal P.C. lays down as to what record shall be maintained by Presidency Magistrates in the trial of cases coming before them. Sub-section (1) of Section 382 requires a Presidency Magistrate in every case tried by him, in which an appeal lies, either to take down the evidence of witnesses with his own hand, or cause it to be taken down in writing from his dictation in open Court. Sub-section (2A) of Section 362 makes it obligatory upon the Magistrate to make a memorandum of the substance of the examination of the accused; and Sub-section (4) of that section provides that 'in cases other than those specified in Sub-section (1) of the section, it shall not be necessary for a Presidency Magistrate to record the evidence or frame a charge'.
The effect of the provisions of Section 362 is that when a Presidency Magistrate takes up a case for trial he must make up his mind whether he would impose an appealable sentence if the accused is convicted; and if he is of the view that he would impose an appealable sentence, he la required by. Sub-section (1) of that section to maintain a record of the evidence given before him during the trial, and to maintain a memorandum of the substance of the examination of the accused. If the Magistrate comes to the conclusion that' even if the accused is convicted he would not impose an appealable sentence, under Sub-section (4) of Section 362 'it shall not be necessary for the Magistrate to record the evidence or frame a charge'. But evidently Sub-section (4) confers a discretion upon a Presidency Magistrate, in cases in which he is of the view that an appealable sentence may not be imposed upon the accused, not to record evidence or to frame a charge.
The discretion required to be exercised by a Presidency Magistrate under Sub-section (4) of Section 362 must of necessity be a Judicial discretion. Subsection (4) of Section 362 of the Criminal P. C. however does not confer upon a Presidency Magistrate an arbitrary license to record or not to record evidence according as he pleases. In a case which is so simple that it may be disposed of without any delay and on evidence which can be finished at a single hearing, a Magistrate may be Justified in not maintaining record of| evidence. But where either substantial questions of law or of appreciation of evidence arise or adjournments are necessitated and evidence of witnesses is heard after long intervals, a Magistrate would not normally be justified in refusing to maintain any record of evidence of the witnesses examined or to make a memorandum of the substance of the examination of the accused.
The Legislature has not made the orders passed: by Presidency Magistrates final. , Under Ss. 433 and 439, Criminal P.c. this Court Is Invested with very wide revisional jurisdiction over the orders passed by subordinate Courts, be they Courts of Presidency Magistrates, or the Courts of Magistrates of First Class, Second Class, or Third Class, or the Courts of Session. The revisional Jurisdiction may be exercised by the High Court to test the correctness, legality or even the propriety of the finding, sentence or order of the subordinate Criminal Courts, or (or satisfying Itself as to the regularity of the proceeding of such Courts. It need hardly be said that the jurisdiction is intended by the. Legislature to be real, and can be effectively exercised only if the Courts below maintain a proper and adequate record of the trials before them as would enable this Court to satisfy itself as to the correctness, legality or propriety of the orders passed by them and as to regularity of the proceedings.
Failure to maintain a proper record of the evidence in a case where some substantial question of law or of fact arises, or where the case has to be adjourned several times and evidence of different witnesses has been heard after long intervals, would in effect deprive this Court of its right to exercise its revisional Jurisdiction.
4. Mr; Dalai who appears on behalf of the accused submitted that the discretion vested in a Presidency Magistrate by Section 362 (4) is absolute and unfettered and the presidency Magistrate is the sole judge of what record he should maintain in a case before him, and this Court cannot interfere with the exercise of his discretion by laying down general rules of practice or even in any particular cases. The learned Government Pleader also appeared to support that contention. In support of his contention Mr. Dalai relied upon a judgment of this Court reported in -- 'D' Souza v. Emperor', AIR 1932 Bom 180, where the head-note is :
'Under Section 363 of the Criminal Procedure Code a Presidency Magistrate is not bound to record evidence in cases which are not appealable. His right to refuse to record evidence is absolute, and as long as the case falls within the cases excepted under Section 362(4) he is not bound to record the evidence.'
That case undoubtedly supports the submission made by Mr. Dalai, and if it were the only decision of this Court on the interpretation of Section 362 (4), however reluctant I may have felt, I would have been bound to follow it. It has, however, to be noted that the learned Judges who decided that case refused to follow an earlier decision of this Court reported in -- 'Emperor v. Harischandra', 10 Bom LR 201. In -- 'Harischandra's case (B)', it was observed that Section 362 of the Criminal Procedure Code lays down that 'except in certain cases a Magistrate shall take down evidence in the manner prescribed thereby, but that does not mean that in the cases excepted he can act arbitrarily and record nothing by way of evidence. It was also observed in -- 'Harischandra's case (B), that:
'The: exception gives' him the Magistrate) merely ' a discretion to take down the evidence or not; in other cases to which the exception does not apply he is bound to record the 'evidence. But the discretion, like all discretionary powers should be exercised judicially in a reasonable-spirit and not arbitrarily. For instance, in case of petty offences such as 'nuisances', or what are called in Police parlance 'morning cases', there may be no necessity to record any evidence.'
5. It was urged that since -- 'Harischandra's case (B) was decided Section 362 was amended by the Legislature in the year 1923. It is true that sub-Section (4) of Section 362 was added by Act 18 of 1923, but a perusal of the amending provision shows that by adding Clause (4) what was implicit has been made express, and no substantial alteration has been made in the structure of the section. In this state of conflict of authorities I am Justified in following the earlier judgment, which with respect lays down a rule which with all humility I may observe is consistent with the scheme of the Criminal P. C., and requires the Presidency Magistrates ' not only to do justice, but to so adjust their procedure that justice may be seen to be done.
6. Mr. Dalai has also invited my attention to a later decision of a Full Bench of this Court . reported, in -- 'P. D. Shamdasani v. H. P. Mody', AIR 1944 Bom 129 (C) That was a case which the Full Bench after noting the difference of opinion between two sets of judgments of Division Benches of this Court on the question whether this Court would interfere with the exercise of discretion in recording evidence by Presidency Magistrates, where no record of evidence is maintained, observed at p. 130 of the report:
'We have no doubt that it would be wrong to-interfere in 'this' case, since the discretion of the Magistrate has been judicially exercised'.
7. Clearly implicit in the observation made by the Full Bench is the view that if in a case it appears that the discretion given to Presidency Magistrates under Section 362 of the Criminal P. O. has not been judicially exercised, the High Court has jurisdiction to interfere with the order impugned on the ground that no record has been maintained by the Magistrate when he tried the case under Section 362, Sub-section (4), Criminal P.c. The Full' Bench judgment does not therefore take a view contrary to the view taken in-- 'Harischandra's case (B)'.
8. Under the Criminal P. C. an appeal does not lie against conviction by a Presidency Magistrate if the term of the sentence of imprisonment imposed by him does not exceed six months, or the fine does not exceed Rs. 200 (See Section 411, Criminal P. C.). Even if a Presidency Magistrate-imposes a cumulative sentence of imprisonment and fine not exceeding the maximum laid down by Section 411, Criminal P. C., no appeal lies. The Presidency Magistrates are, it is obvious, invested with power of great amplitude : but the very amplitude of the power demands that the power ' must be exercised with a degree of responsibility co-extensive with the gravity thereof and not arbitrarily.
I am not suggiesting for a moment that'' the Jurisdiction vested in Presidency Magistrates' is being exercised arbitrarily, but I am seeking to refute the contention raised by counsel for the accused and sought to be supported on behalf of the State. The powers conferred upon the Presidency Magistrates being very extensive, it must appear that in the exercise of the powers there was consciousness of the serious responsibility which rest upon the Magistrates who exercise those powers. Undoubtedly, the Legislature has not made it obligatory upon a Presidency Magistrate to maintain a complete record in cases where the sentence he may impose would be non-appealable. But a right to pass Judgment imposing serious penalties upon a litigant before a tribunal which is not subject to correction by the normal process of appeal carries with it a serious duty to so adjust the procedure that justice not only may' be done but that the higher authority which is invested with the power to see that justice is done by that tribunal may satisfy itself independently that' Justice is done and may in proper cases rectify any injustice done.
In this very case the learned Magistrate could have, on the record maintained by him, sentenced the accused to suffer rigorous' imprisonment for six months and to pay a fine of Rs. 200, and the accused could have contended with great force that when the orders passed by the learned Magistrate are subject to the revisions Jurisdiction of this Court the validity of his conclusions must not depend solely upon what he chooses to state in his judgment, but must be capable of being independently cheeked. Of course no definite rules can be laid down as to the manner in which the discretion should be exercised, and this Court would be unwilling to interfere with the exercise of the discretion unless there is reason to believe on the materials before it that injustice has been done.
It may be that in this case on materials before him the learned Magistrate was Justified in acquitting the accused. But the complainant submits 'that injustice has been done to him. He points out with some force that even though three witnesses were examined on behalf of the prosecution, there is reference in the Judgment only to two. He also points out that mere denial by the accused of the accusation cannot be a sufficient ground for acquitting the accused. There is also some force in the contention that the learned Magistrate should not have discarded the-testimony of the complainant merely because there was 'word against word', but should have considered whether the story of the complainant and his witnesses in its essential details was true and established the case beyond reasonable doubt against the accused.
9. Mr. Dalai on behalf of the accused has invited my attention to the following observations of their Lordships of the Supreme Court in --'D. Stephens V. Nosibolla', : 1951CriLJ510 :
'The revisional Jurisdiction conferred on the High Court under Section 439 of the Code of Criminal Procedure is not to be lightly exercised, when: It is invoked by a private complainant against an order of acquittal, against which' the Government has a right of appeal under Section 417, It could be exercised only in exceptional cases' where the interests of public . Justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of Justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record.'
10. But I am not seeking in this case to interfere with the order merely on appreciation of evidence or mere error of law, but on what I hold is a denial of right to a fair trial. Bearing in mind the observations made by their Lordships of the Supreme Court that the revisional jurisdiction of this Court under Section 439, Criminal P. O. will not be lightly exercised especially when a private complainant approaches this Court against the order of acquittal against which the Government has a right of appeal under Section 417 of that Code, I still think that in view of the larger question involved in the decision of this case this is one of those cases which must be regarded as 'an exceptional case where interests of justice require interference by this Court to the correction of what on the record is a manifest illegality and an order setting aside the whole trial is necessary for the prevention of possible gross miscarriage of justice.
11. I, therefore, make the rule absolute, setaside the order passed by the trial Court anddirect that the papers be sent back to the trialCourt for a fresh trial according to law.
12. Rule made absolute.