1. This is a revision petition against the judgment of the learned Special First Class Magistrate, Davangore in C. C. No. 960 of 54 convicting the petitioner-accused of an offence Under Section 86 (2), Town Municipalities Act and sentencing each of them to pay fine of Rs. 20/- and in default to undergo simple imprisonment for one week each.
2. The case for the prosecution was that on the night of 15-4-1954 the petitioners-accused, with intent to defraud the Town Municipality had brought and introduced into the municipal limits certain goods liable for octroi duty, without paying the required duty, and that they thereby committed offences Under Section 86 (2) and Section 87, Town Municipalities Act. The learned Magistrate convicted and sentenced the appellants-accused as stated above. As against that conviction and sentence, this revision petition is filed.
3. The main point that arises for consideration is whether the conviction could be sustained. Various grounds have been urged in the petition and one of the important grounds strenuously argued before me is that the judgment of the lower Court is opposed to law, that though the case has been tried summarily the learned Magistrate has dictated the judgment to the stenographer and has thereby failed to comply with the provisions of Section 265 (1), Cr.PC which provides the manner in which a judgment in a summary trial has to be written, that according to that provision the judgment in this case should have been written by the learned Magistrate in his own hand-writing, that the judgment is therefore illegal and that the conviction and sentence have to be set aside. It appears to me that there is considerable force in this contention.
4. Section 265(1), Cr.PC runs as follows:
Records made Under Section 263 and judgments recorded Under Section 264 shall be written by the presiding officer, either in English or in the language of the Court, or, if the Court to which such presiding officer is immediately subordinate so directs, in such officer's mother tongue.
The words 'shall be written by the presiding officer' appearing in the above section clearly go to indicate that the provisions of this section are man- datory. In this connection I would like to refer to a case reported in - 'Subramanaya Ayyar v. The Queen', 6 Mad 396 (A), where it has been held that in summary trials under the provisions of Chap. XVIII, Cr.PC the record in Non appealable cases and the judgment in appealable cases must be written by the Magistrate in his own hand. In this case, as said already, the case was tried summarily and the judgment dictated to the stenographer. According to Section 265 (1), Cr.PC the judgment should have been written by the learned Magistrate in his own hand. There has thus been failure to follow the man mandatory provisions of Section 265 (1), Cr.PC
5. Reference has been made by the learned Counsel for the respondent - Municipality, to Section 367, Cr.PC Section 367, Cr.PC runs as follows:
Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer in the language of the Court, or in English; and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and where it is not written by the presiding officer with his own hand, every page of such judgment shall be signed by him.
I am of opinion that this section does not help the respondent-complainant. The words 'except as otherwise expressly provided by this Code' appearing in the above section are very significant. How judgments in summary trials have to be written is provided in Section 265 (1), Criminal P. C. and as such this must be taken as an exception to the rule laid down in Section 367 (1), Criminal P. C. Under these circumstances, I am of opinion that the judgment of the trial Court is illegal inasmuch as it offends 'the provisions of Section 265 (1), Criminal P. C. and that the same has to be set aside. As the conviction of the Petitioners and the sentence passed on them have to be set aside in view of the technical defect referred to above, it is not necessary for me to deal with other grounds mentioned in the petition. But, considering the nature of the case, I am of opinion that it is not expedient to order a retrial.
6. In the result, this revision petition is allowed. The conviction of the appellants-accused and the sentence passed on them are set aside and the fine, if paid, will be refunded to them.