Beaumont, Kt., C.J.
1. This is a reference made by the Sessions Judge of Belgaum under Section 438 of the Criminal Procedure Code. It appears that certain accused persons were charged under Sections 323, 504 and 506 of the Indian Penal Code, before the learned Honorary Magistrate, First Class, Belgaum, who acquitted them under Section 258 of the Criminal Procedure Code. He thereupon, in exercise of the powers conferred upon him by Section 250, called upon the complainant to show cause why he should not be ordered to pay compensation to the accused on the ground that the charge he had made against them was false, and either frivolous or vexatious. The learned Magistrate then recorded the reasons given by the complainant for suggesting that he ought not to be dealt with under Section 250, and being dissatisfied with those reasons, the learned Magistrate directed the complainant to pay Rs. 50 to all the accused. An application was then made by the complainant to the Sessions Judge of Belgaum to review that order, and the learned Sessions Judge, considering that the order was wrong, has referred the matter to this Court. The reasons given by the learned Sessions Judge are based on two alleged irregularities in the original trial. He says, in the first place, that the accused were not questioned after the prosecution evidence was closed, under Section 342. Therein I think he is wrong on the facts, because the record shows that the accused were questioned after the close of the prosecution evidence.
2. The next point is a more serious one, and raises a question of procedure on which there has been a difference of opinion between the Calcutta High Court and the Allahabad High Court. The point is this. The offence charged against the accused came within the provisions of Section 260, Sub-section (1), of the Criminal Procedure Code, and therefore the offence was triable summarily by a Magistrate of the First Class empowered under that section, and was so tried. The Magistrate made some notes of the evidence recorded, but he did not keep them, and the learned Sessions Judge was of opinion that the Magistrate was bound to take a note of the evidence under Section 355 of the Criminal Procedure Code, and that, those notes not being available, it was not possible for a Court in revision to determine whether the prosecution was false and frivolous or vexatious, or not. The answer made by the accused to that is that the learned Judge was not bound to record any notes of the evidence and that if he did record any notes, they were his private property, and he was entitled to destroy them since they formed no part of the record. The question, therefore, to be determined is, whether the learned Magistrate was bound by the provisions of Section 355 of the Criminal Procedure Code to record the evidence, this being a summary trial. Under Section 263 of the Code, which is one of the sections dealing with summary cases, it is provided that where no appeal lies, the Magistrate need not record the evidence, though he has to enter certain particulars. Under Section 264, in summary cases where an appeal does lie, the Magistrate has to record a judgment embodying the substance of the evidence, and such judgment is to be the only record in cases coming within that section. Here, the accused having been acquitted, we do not know whether the case fell within Section 263 or Section 264 but under neither of those sections is the Magistrate bound to record evidence. Then we come to Section 354, which provides that in inquiries and trials other than summary trials by a Magistrate other than a Presidency Magistrate or Sessions Judge the evidence of the witnesses shall be recorded ' in the following manner.' Then comes Section 355, which provides that in summons cases tried by a Magistrate other than a Presidency Magistrate, and in cases of the offences mentioned in Sub-section (1) of Section 260, Clauses (b) to (m), when tried by a Magistrate of the First or Second Class, the Magistrate shall make a memorandum of the evidence of each witness. Now, this case is one of those mentioned in Clauses (b) to (m) of Sub-section (1) of Section 260, and the view urged on behalf of the complainant and the view which prevailed in the Calcutta High Court in Satish Chandra Mitra v. Manmatha Nath Mitra I.L.R. (1920) Cal. 280 is that in every case of the classes mentioned in Clauses (b) to (m) of Section 260 the provisions of Section 355 apply. On the other hand, the view contended for by the accused, and the view which prevailed in the Allahabad High Court in Emperor v. Mantu Tiwar I.L.R. (1926) All. 261 is that Section 355 has no application whatever to summary trials. In my opinion the latter view is the right one. Section 355 follows immediately on Section 354, which introduces the sections providing how in trials other than summary trials the evidence is to be recorded, and appears clearly to limit the operation of Section 355 to trials other than summary trials. It is also to be observed that in Section 355 the reference is to cases mentioned in Section 260, Sub-section (1), Clauses (b) to (m), and not to cases tried summarily under that section. It is further to be observed that Section 355 includes a Magistrate of the Second Class dealing with cases under Section 260, Clauses (b) to (m), though such a Magistrate has no power to try any such case summarily. In my opinion, therefore, the view of the Allahabad High Court is to be preferred to that of the Calcutta High Court. I think that in summary cases the recording of evidence is governed by Sections 263 and 264, and that Section 355 has no application at all to summary cases. If that is so, the learned Magistrate in this case was not bound to record any notes of the evidence, and it is no objection to his decision under Section 250 that he has destroyed any notes he did take of the original hearing. In my opinion there is no ground for interfering with the order made by the learned Magistrate, and this reference must be rejected.
3. I agree.