1. This is an appeal against a conviction under Section 457, read with Section 511, Indian Penal Code, by the Additional Presidency Magistrate, Mr. Thacker, who sentenced the appellant to one year's imprisonment. In the appeal it is alleged that the appellant was decoyed by a stranger to the place where he was arrested and wrongly accused of house breaking and theft.
2. There is no record of the statements of the witnesses at the trial. Their names only are given, with an indication that they gave evidence and were cross examined. The Magistrate has thus failed to comply with the provisions of Sub -sections (1) and (2) of Section 362, read with Section 411, Criminal Procedure Code, for the sentence inflicted upon the appellant exceeded six months.
3. The learned Magistrate was asked why evidence had not been properly recorded as required by Section 362 Criminal Procedure Code, and his explanation is that he was misled by the analogy of sending juvenile offenders to Reformatory Institutions for three years or more into thinking that the Mending of a, boy to the Dharwar Juvenile Jail is not strictly speaking a sentence of imprisonment but of detention in a reformatory. He refers to the Government Rules which require a minimum sentence of twelve months rigorous imprisonment in such a case and accordingly he had to impose one year's imprisonment, but treated it as merely nominal. This explanation is not quite satisfactory because obviously the very description of the Dharwar Juvenile Jail as a jail, and the fact that a sentence of imprisonment has to be passed, clearly distinguishes the case from one in which a sentence of detention in a reformatory is passed under the Reformatory Schools Act, It may also be pointed out to the learned Magistrate that even in cases falling under Sub-section (4) of Section362, the discretion which is allowed to a Presidency Magistrate not to record any evidence should be exercised reasonably, as has been pointed out by this Court in Emperor v. Harischandra Talcherkar (1907) 10 Bom. L.R. 201.
4. I make this remark, because in several cases I have noticed that this Presidency Magistrate does not follow the example of other Presidency Magistrates, who give at least a general indication or the nature of the evidence of the witnesses regarding any serious crime not falling under the description of an ordinary 'morning case.'
5. In the present instance, in our opinion, there has been a serious irregularity in the Magistrate failing to comply with the provisions of Sub-section (1) of Section 362, Criminal Procedure Code. This irregularity obviously prejudices the accused, as we cannot consider the appeal on its merits. We have no knowledge of the exact allegations that were made in evidence, nor of the exact reasons on which the Magistrate based his conviction. In our opinion this occasions a failure of justice, which prevents the irregularity being waived under Section 537, Criminal Procedure Code.
6. The learned Government Pleader, who has appeared at the direction of the Court, does not dispute that under the circumstances of the case an order for a re-trial is the proper one to be made.
7. We, therefore, quash the conviction and sentence recorded against the accused, and direct that he should be re-tried before a Presidency Magistrate other than the one who has already expressed an opinion in the case, to be nominated by the Chief Presidency Magistrate, and we hope that in future the learned Magistrate will comply more strictly with the provisions of Section 362, Criminal Procedure Code.
8. I agree.
9. I would only add that the materials before us on the present record, including the learned Magistrate's judgment, are so scanty that it is impossible to check any detail whatever in connection with the offence, or even to know what it was exactly that the accused did which led to this charge against him of an attempt to commit house-breaking by night.