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M. Khivaraj Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 75 of 1955
Judge
Reported inAIR1955Kant129; AIR1955Mys129; 1955CriLJ1503
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 253, 254, 255, 262 and 342; Indian Penal Code (IPC), 1860 - Sections 411
AppellantM. Khivaraj
RespondentState of Mysore
Appellant AdvocateS. Vasupala Rao, Adv.
Respondent AdvocateAdv. General
Excerpt:
- code of civil procedure, 1908. order 21, rule 46: [s.r. bannurmath & jawad rahim, jj] application under -attachment and prohibitory order for disbursement of the amount in rfd account of the judgment debtor maintained by the appellant bank order passed by the executing court held, order 21, rule 46a provides that the courts may in case of a debt, which has been attached under rule 46, upon the application of the attaching creditor, issue notice to the garnishee liable to pay such debt, calling upon him either to pay into court the debt due so as to satisfy the decree in question. the appellant is a garnishee of the judgment debtor is not in dispute. the executing court was justified in passing the impugned order. it is to be noted that mere prohibition under karnataka co-operative..........procedure prescribed for summons cases shall be followed in summons cases and that prescribed for warrant cases shall be followed for warrant cases except as thereinafter .mentioned. the offence for which the petitioner has been convicted is one under section 411, i.p.c. which is triable as awarrant case. the contention strenously put forward by the learned counsel for the petitioner is that the procedure laid down in respect of warrant cases has not been followed in the present case, that no witnesses were examined for the prosecution, that the learned magistrate recorded the plea of the accused immediately he appeared before court as in a summons case and that he proceeded to convict the petitioner on the strength of the said plea. these allegations are borne out by the copy of the.....
Judgment:

1. This is a revision petition preferred by the petitioner-accused against the judgment of the learned Special First Class Magistrate, Kolar Gold Fields, in C. C. No. 1032/55, convicting him of an offence under Section 411, I.P.C. and sentencing him to pay a fine of Rs. 25 and in default to undergo rigorous imprisonment for seven days.

2. The case for the prosecution was that the accused was on 11-9-54 found with a silver sport cup valued at Rs. 20 knowing or having reason to believe the same to be stolen property and that he thereby committed an offence under Section 411, I.P.C. The accused is said to have pleaded guilty which resulted in the conviction and sentence referred to above. It is against that decision that this revision petition is filed.

3. It appears to me that the proceedings in the lower Court are attended with, serious irregularities. It was contended by the learned counsel for the petitioner that the procedure laid down in Section 262, Cr.P.C. has not been followed and that it has resulted in prejudice to the accused. There seems to be considerable force in this contention. Section 262 Cr.P.C. inter alia lays down that in trials under Chap. XXII the procedure prescribed for summons cases shall be followed in summons cases and that prescribed for warrant cases shall be followed for warrant cases except as thereinafter .mentioned. The offence for which the petitioner has been convicted is one under Section 411, I.P.C. which is triable as awarrant case. The contention strenously put forward by the learned counsel for the petitioner is that the procedure laid down in respect of warrant cases has not been followed in the present case, that no witnesses were examined for the prosecution, that the learned Magistrate recorded the plea of the accused immediately he appeared before Court as in a summons case and that he proceeded to convict the petitioner on the strength of the said plea. These allegations are borne out by the copy of the judgment granted to the petitioner by the lower Court. The judgment in the case was pronounced on 9-3-55, and two days later, viz., on 11-3-55 the copy of judgment produced by the petitioner has been granted to him. In this copy, no reference is made to the examination of any witness and it looks as if the plea of guilty was recorded as soon as the petitioner appeared before Court. It is also clear therefrom that the learned Magistrate has adopted a procedure which is prescribed for summons cases to a case which ought to have been tried as a warrant case. It is rather significant to note that the original judgment written by the Magistrate himself docs not tally with the certified copy of the judgment granted to the petitioner. No doubt, in the original judgment it looks as though the procedure prescribed for warrant cases has been adopted. As to how and why this discrepancy between the original judgment and the copy thereof has arisen is difficult to understand. Anyway, this much is clear that the copy of the judgment granted to the petitioner fully supports the contentions put forward by him. I am of opinion that the procedure adopted by the learned Magistrate is illegal and that it vitiates the entire trial.

4. Even if we were to accept the suggestion as supported by the original judgment in the case that the procedure prescribed for warrant cases has been followed, then also the conviction cannot stand. It need hardly be stated that the stage at which a charge is to be framed is when the offence appears to have proved against an accused. If evidence adduced on the side of the prosecution does not give rise to any presumption that the accused has committed an offence or, in other words, when the evidence adduced in the case does not make out a prima facie case against the accused, then the Court should not frame a charge against him. In such a case, what the Court has to do is simply to discharge the accused in a warrant case or acquit him in a summons case. When the evidence does not disclose a prima facie case against an accused, his examination under Section 342, Criminal P.C., is not only unnecessary but also illegal. The object of Section 342 is to enable the Court to ascertain from the accused what explanation he may have or desire to give regarding any fact stated by a witness or any circumstance appearing against him. If there is no incriminating evidence or circumstance which the accused has to explain, then the examination under Section 342. Criminal P.C., becomes Unnecessary and it would be improper to question the accused under those circumstances unless the object be to trap him into some admission or to supplement the case for the prosecution or to fill up the gaps in the prosecution evidence, which is not at all, in my opinion, the object of the provisions of Section 342, Criminal P.C. In this connection, I would like to refer to two cases, one of this Court and another of the Madras High Court. In the case reported in 7 Mys L J 246 (A), it is held that an accused should not be examined under Section 342, Criminal P.C., when there is nothing in the evidence which requires an explanation from him, and that any statement recorded would be in-admissible. The same view is taken in the case reported in 'In re, Abibulla Rowthen' AIR 1916 Mad 407(B).

5. Reliance is placed by the learned Magistrate m the evidence of P. W. 1, the only witness allegedto have been examined for the prosecution. He has sworn to the registration-of the case and the recovery of the property. We have no evidence to show that there was theft of M. O. 1 and that the accused had it knowing or having reason to believe that the same was a stolen property. The accused appears to be a bona fide pawn broker, and the dishonest intention contemplated in Section 411, I.P.C. and the other ingredients referred to therein have not been proved. Further, except the note in the judgment that the accused has pleaded guilty we have no materials to know what the accused exactly said which convinced the Magistrate as a plea of guilty. As a rule, the plea of guilty made by an accused should be recorded as nearly as possible in the very words used by him. In this case, nowhere do we find as to exactly what the accused said in his pica which is construed by the learned Magistrate as a plea of guilty. Such a record is essential to enable the appellate Court or the Court of Revision to determine whether what the accused said really amounts to an admission of guilt and whether the lower Court understood the plea of the accused correctly, because in order that a conviction on the plea of an accused may be sustained it is necessary that he should admit in his plea all the elements of the offence. This is another irregularity which, in my opinion, vitiates the trial. In any view of the case, I am of opinion that the conviction of the petitioner cannot be sustained.

6. In the result, the conviction of the petitioner and the sentence passed on him are set aside and this revision petition is allowed. The fine, if already re-covered shall be refunded to the petitioner.

7. Revision allowed.


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