1. Being aggrieved by an order passed by the 2nd Extra Additional Sessions Judge, Nagpur, in on appeal, setting aside the conviction and sentence passed by the trial Court under Section 380, Indian Penal Code and remanding the case for fresh trial, the State has come here in revision. The non-applicant Syed Nazir was convicted by the trial Court for an offence punishable under Section 380, Indian Penal Code, and was sentenced to suffer imprisonment till rising of the Court and also a fine. When the accused went in appeal before the learned 2nd Extra Additional Sessions Judge, a ground was taken there that a formal charge was not framed during the trial against the accused. The learned Additional Sessions Judge decided this point without deciding the case on merits. According to him, although the procedure prescribed for the warrant-case was followed, yet, a formal charge, even though it was tried summarily, ought to have been framed. According to him, it was incumbent on the Magistrate to frame a formal charge as provided in Section 251(A)(3), Criminal Procedure Code, and record the plea of the accused after explaining the charge to him. He, therefore, observed that the trial of the accused without a formal charge has been vitiated, and the defect cannot be cured under Section 537, Criminal Procedure Code. He, therefore, set aside the order of conviction and sentence and remanded the case back for fresh trial according to law. This order of the learned Additional Sessions Judge, therefore, is challenged here by the State.
2. Although the learned advocate for the non-applicant pleads here that the case was actually not tried as a warrant case, but was tried as a summons case, the record shows that the learned Magistrate, while trying summarily the accused, followed the procedure in a warrant case. The learned Additional Sessions Judge also observed that the trial Court had followed a procedure in a warrant case but did not frame a formal charge. Let us, therefore, see whether it is necessary for the Magistrate to frame a formal charge while trying an accused summarily even under a warrant case. Chapter XXII of the Criminal Procedure Code deals with the summary trials. Under Section 200, Criminal Procedure Code of that Chapter an offence of theft, where the value of property stolen does not exceed Rs. 200, can be tried in a summary way. The accused is said to have committed a theft of some cut pieces below the value of Rs. 200. Under Section 262, Criminal Procedure Code, in trials under Chapter XXII, the procedure prescribed for summons cases shall be followed in summons cases and the procedure prescribed for warrant cases shall be followed in warrant-eases, except as hereinafter mentioned. Therefore, under Section 262, Criminal Procedure Code, if for an offence a warrant-case procedure had to be followed, it shall be followed but that procedure is modified by Sections 263, 264, and 265, Criminal Procedure Code. Section 263, Criminal Procedure Code deals with the record in cases where there is no appeal and Section 264, Criminal Procedure Code deals with the record in appealable cases. We are here concerned with an appealable case. Under Section 264,' in every case tried summarily by a Magistrate in which an appeal lies, such Magistrate shall record, the substance of the evidence and also the particulars mentioned in Section 263 and shall, before passing any sentence, record a judgment in the case.' Therefore, the Magistrate has to record, the substance of the evidence and also the particulars mentioned in Section 263. Under Section 263, which deals with cases where there is no appeal, the Magistrate need not record the evidence of the witnesses; he need not also frame a formal charge. But under Section 264, the Magistrate has to only record the substance of the evidence. It is not provided that ho should also frame a formal charge. The particulars mentioned in Section 263 ate given in that section at serial numbers (a) to (j). Therefore, it is clear from the language of Section 204, that the Magistrate shall record the particulars (a) to (j) as given in Section 263 and shall also record the substance of the evidence. There is nothing more to be done. It is not mentioned in Section 264 that the Magistrate shall not only record the substance of the evidence but also frame a formal charge. It appears to me, therefore, that the Magistrate, while trying a case in which an appeal lies, need not frame a formal charge. If, therefore, a formal charge is actually not framed while trying an accused summarily, it is not a fatal infirmity.
3. But the learned advocate for the non-applicant relies on Bandulal v. State : AIR1962Bom258 and says that this Court had ruled in this case that such an infirmity is fatal. I cannot accept this contention for the reason that the case, which was dealt with in that case, was actually a warrant-case and not a summons-case; however, the Magistrate, instead of following the procedure laid down in a warrant-case, followed the procedure laid down in a summons-case. It was, therefore, urged on behalf of the accused there that the trial was vitiated by the Magistrate following a wrong procedure. It is in this context of the facts that this Court referred to a Privy Council case in Kottaya v. Emperor (1946) 49 Bom. L.R. 508 : A.I.R.  P.C. 67, where the Privy Council divided the trials into two categories. The first category of trials is a trial conducted substantially in the manner prescribed by the Code and the second category of trials is a trial conducted in a manner different from that prescribed by the Code. In the former case, the Privy Council held that the trial was irregular and in the latter case the Privy Council held that the trial was vitiated. Because the Magistrate followed a summons-case procedure instead of a warrant-case procedure, therefore, this Court held in that case that the trial was vitiated because the Magistrate conducted the trial In a manner different from that prescribed by the Code. Therefore, the order was sot aside. In so far as our case is concerned, the learned Magistrate has followed a warrant-case procedure. The complaint is that he did not frame a formal charge even while trying the accused summarily by following a warrant-case procedure. This case, therefore, will come under the second category, viz., that the trial was conducted substantially in the manner prescribed by the Code but some irregularity had occurred in the course of such conduct. Therefore, such an irregularity could be cured under Section 537, Criminal Procedure Code, even according to the Privy Council ruling. But according to me, as mentioned above, there is not even this irregularity.
4. But the learned advocate for the non-applicant relies upon the directions given by this Court after setting aside the order in the above cited Bombay case. The ratio of this case is not in the direction given after a certain decision was taken but it is in the decision itself. I do not, therefore, think that the directions given to the Magistrate after a decision will be of any use to the learned advocate for the non-applicant.
5. But the learned advocate for the non-applicant says that the accused in this case is a primary school teacher and he stands to lose his job if he is found to have committed the offence. According to him, therefore, the trial ought to have been a regular trial and not a summary trial. He relies on Sachidanand v. State : AIR1956All212 , wherein the Allahabad High Court was considering the case of a watchman in the goods shed of O.T. Railway at Banaras. It was held in that case by Mr. Justice Asthana that though the summary trial was legal, yet, it was not desirable as the conviction was likely to result in his dismissal from service. Now, it may be in a given case desirable, but when we look at the record of our case, the learned Magistrate appears to have recorded almost all the evidence in details. In so far as the charge is concerned, he has also explained to him all the details of the allegations that are generally necessary even at the time when a formal charge was prepared. I do not, therefore, think any prejudice was caused to the non-applicant when the accused was summarily tried. He had also not mentioned to the trial Court that he was prejudiced because he was tried summarily. It was also not mentioned before the learned Additional Sessions Judge that any prejudice was caused to him because he was tried summarily. This point appears to have been taken hero for the first time. I do not, therefore, think that any prejudice is caused to the non-applicant by the summary trial. This plea also has no substance.
6. This revision application, therefore, will have to be allowed. I, therefore, allow the revision application, set aside the order of the Second Extra Additional Sessions Judge, Nagpur and send the record and papers back to him for disposal of the appeal on merits according to law.