1. In this case, a complaint was filed by the Octroi Superintendent of the Surat Municipality under Section 77(2) of the Bombay District Municipal Act III of 1901 against the petitioner alleging that on October 1, 1925, the petitioner took two parcels of goods from the Surat station to the town, but that he paid the dues for the price of one only, and thereby caused a loss to the Municipality of about Rs. 11.
2. The accused's case was that he gave the true valuation at the station, that he thereafter delivered one of the parcels to one Chhaganlal Jhaverchand at the station, who took one of the parcels to Bardoli without taking it into the town, that he gave the valuation of one at the Naka (Dalhi Naka), and that he never carried both the parcels to the town, and that he made proper payment at the Naka and had committed no offence under the section.
3. The Bench Magistrates, Second Class, Surat, convicted the accused holding that there was sufficient evidence to prove that the accused committed the offence and convicted the accused under Section 77(2) of the Bombay District Municipal Act III of 1901 and sentenced the accused to pay a fine of Rs. 110. On appeal the conviction and sentence were confirmed. The Appellate Court held that there was overwhelming prosecution evidence that the accused took both the parcels in a carriage, that the men at the Time Naka and Delhi Naka saw the carriage and the parcels, and that the octroi receipt, which was drawn up in triplicate at the Naka when the carriage passed the Naka, unequivocally showed that the two parcels were taken into the City. On the merits, the Appellate Court found against the contention raised on behalf of the accused.
4. The first point raised on this application is that the Bench Magistrates had taken notes of evidence which were subsequently destroyed and that they ought to have formed part of the record of this case. The prosecution was under Section 77(2) of the Bombay District Municipal Act III of 1901 and the Bench Magistrates exercised jurisdiction under Section 26l (6) of the Criminal Procedure Code. Section 355 of the Criminal Procedure Code lays down that in summons oases tried before a Magistrate other than a Presidency Magistrate, and in cases of the offences mentioned in Sub-section (1) of 9. 260, Clauses (6) to (m), both inclusive, when tried by a Magistrate of the First or Second Class, the Magistrate shall make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds. Section 355, therefore, applies to offences coming within Clauses (b) to (m) of a 260, but as the present offence does not fall within the said clauses but comes under Section 261, Clause (b), e. 355 would not apply, Reliance is placed on behalf of the accused on the case of Satish Chandra Mitra v. Emperor 61 I.C 846 : 48 C. 280 : 32 C.L.J. 451 : 22 L.J. 462 in support of the contention that Sections 263 and 355 must be read together and that the notes of evidence form part of the record and cannot be destroyed. Under Section 263 where no appeal lies, the Magistrate need not record the evidence of the witnesses or frame a formal charge but shall record the finding, and in the case of a conviction, a brief statement of the reasons therefor. Even if no brief statement is given it may amount to a mere irregularity which can be cured under Section 537, Criminal Procedure Code: see Namdeo Lakman v. Emperor 85 I.C 146 : 26 Bom. L.R. 1236; A.R. 1925 Bom. 138 : 26 L.J. 466. In cases coming under Section 264 where an appeal lies Clause (1) says that such Magistrate shall, before passing sentence record a judgment embodying the substance of the evidence and, also the particulars mentioned in Section 263, and Clause (3) says that such judgment shall be the only record in cases coming within this section. In cases falling under Clauses (6) to (m) of Section 260, Criminal Procedure Code, where evidence is recorded under Section 355, different considerations would prevail but Section 355 does not apply to the present case. Therefore, even if rough notes of evidence had been taken by the Magistrate in this case for the purpose of embodying the substance of the evidence in the judgment, they need not form part of the record under Clause (2) of Section 264, and a distinction is made in Section 265 between records made under Section 263 and judgment recorded under Section 264. I agree with the view taken in Rahimtullah Ibrahim v. Emperor 87 I C. 914 : 26 L.J. 1026: A.I.R. 1925 Sind 284 where it was held that under Section 264 of the Criminal Procedure Code, the judgment is the only record in cases which are tried summarily and in which an appeal lies, and the rough and incomplete notes of evidence taken by the Magistrate cannot and should not be transcribed and attached to the record. We think, therefore, that there is no error of law involved in this case and that the Rule must be discharged.
5. I agree. I think that the express terms of subs. (2) of Section 264 clearly show that it cannot be laid down that, if a Magistrate takes rough notes for his own purposes, such rough notes properly form part of the record; and decisions like those in Satish Chandra Mitra v. Emperor 61 I.C 846 : 48 C. 280 : 32 C.L.J. 451 : 22 L.J. 462 seem to me to be going beyond the provisions of the Code, when applied to a case like the present. There is some justification for saying that such notes cannot be destroyed in cases which fall under Section 355, but that section does not apply in the present case. I agree with the remarks contained on this point in Rahimtullah Ibrahim v. Emperor 87 I C 914 : 26 L.J. 1026; A.I.R. 1925 Sind 284 as also with the further remarks that a case which involves a long and complicated inquiry should not ordinarily be tried summarily; but we have not been shown that the present case was one which should not have been tried summarily. The other points taken by Mr. Thakor are, in my opinion, entirely without substance.