1. This revision petition is directed against the judgment of the learned Second City Magistrate Mysore, convicting the petitioner (accused 3) for the offence under Section 448 I. P. C.. and sentencing him to pay a fine of Rs. 26. in default to undergo rigorous imprisonment for two weeks.
2. A complaint was filed against the petitioner and two others on 29-6-65 by Patel Shivappa (P W 4) alleging that they trespassed into his house and assaulted his wife Mahadevamma (P W 9). The case was taken up on file and summonses were issued against the accused persons. The accused appeared before the Court and were bound over. The complainant undertook to produce the witnesses.
After some adjournments, the witnesses were examined on various dates. Finally on 10th April 1965 the case of the complainant was closed and posted to 16-12-65, for examination of the accused under Section 342 Cr. P. C. As the Court was engaged in hearing other cases on that day, the case was adjourned to 20-12-65. On that day the accused were examined under Section 342 Cr. P. C. Arguments were heard on the following day and the case was posted for judgment on 24-12-65. On that day, the Court passed the following order:
'Complainant by Sri TNS, present. All the accused by Sri N. G. A. 1 to 3 present. By oversight their plea was not recorded. Plea recorded A 1 to ft pleaded not guilty. Defence Advocate has nothing to add. Judgment by 28 12-.'
The learned Magistrate acquitted A1 and A. 2 and convicted the petitioner for the offence under Section 448 I. P. C. The correctness of this conviction is challenged in this revision petition.
3. Mr. Basavaltngappa, the learned counsel for the petitioner, contended that the provisions of the Criminal Procedure Code have not been followed in the trial in this case and that has resulted in miscarriage of justice The case was tried as a summons case under Section 242 Cr. P. C When the accused appeared, the particulars of the offence of which he was accused, should have been stated to him and he should have been asked to show cause why he should not be, convicted. Chapter 20 of the Code applies to the trial of summons cases.
The trial of summons case begins when the accused appears or is brought before the Magistrate. Then the Magistrate should follow the provisions of Section 242 Cr. p. C. which are imperative. The procedure prescribed therein should strictly be followed and as soon as the accused person appears or is brought before the Magistrate, the substance of the charge against him must be stated to him and he must be asked to plead The principle that no man should be condemned unheard is perhaps the first and the most important principle relating to the mode of administering justice and in anv record of the essentials of a fair trial, it is the last essential which should he omitted.
4. Mr. Thimarayappa the learned counsel for the respondent, contended that no prejudice is caused to the accused in not stating the particulars of the offence to the accused when the accused was brought before Court as the evidence has been recorded in this case and the accused has been examined under Section 342 Cr P C. There is no satisfactory evidence that the accused entered into the house of Patel Shivappa with intent to commit an offence or to intimidate, insult, or annoy him. Even at the time the accused was examined under Section 342 Cr, P. C. he was not questioned with reference to the circumstances appearing against him.
5. After the arguments in the case were over, the learned Magistrate has recorded the plea of the accused. Even at that stage, the particulars of the offence have not been stated to the accused The mere formality of making a note in the order sheet stating that the 'plea was recorded' is not complying with the provisions of law The accused was being tried for an offence for which he could have been sentenced to one years' rigorous imprisonment or with fine which may extend to Rs. 1000 or with both and therefore, it was incumbent on the Magistrate to see that in such a trial the provisions of the law were obeyed. In this case, the provisions of law from the beginning to the end have been disregarded and that has undoubtedly caused prejudice to the accused.
6. I, therefore, set aside the conviction and sentence imposed on the petitioner and acquit him. The fine if paid, shall be refunded to the petitioner. In the result, the petition is allowed.
7. Petition allowed.