1. In this revision case, the learned Counsel for the petitioners assails the order of the learned Sessions Judge, Karimnagar confirming the conviction and sentence passed by the Munsif Magistrate, Sultanabad in C. C. No. 137/72. The learned Magistrate convicted A-l to A-3 under Section 323, I. P. C. and sentenced each of them to pay fine of Rs. 25/- in default to suffer simple imprisonment for ten days. Aggrieved with the conviction and sentence passed against them, the accused filed a revision petition Cr. R. P. No. 5/1973 before the Sessions Judge, Karimnagar contending that the trial is vitiated as the provisions of Section 242, Cri. P, C. were not complied with.
2. The learned Sessions Judge while rejecting the contention observed as follows:
It is no doubt true that the accused persons were not examined under Section 242, Criminal P, C. but they were defended by a counsel, and they have also led evidence in defence. It is not shown that the failure to examine them under Section 242, Criminal P. C. resulted in miscarriage of justice and caused prejudice to them.
3. So observing, the learned Sessions Judge dismissed the revision petition.
4. It is not in dispute that the learned Magistrate did not state to the accused the substance of the accusation and did not ask the accused if he has any cause to show why he should not be convicted and thus he had not complied with the requirements of Section 242, Criminal Procedure Code. It is also not in dispute that the Magistrate did not hear the accused before the defence evidence was taken as required under Section 244, Criminal P. C.
5. The learned Counsel for the revision petitioners contends that the trial is vitiated on the non-compliance of Sections 242 and 244, Criminal Procedure Code. In support of this contention, he relied upon two decisions of Mysore High Court. In Raghunatha Shenoy v. State of Mysore (1973) Mad LJ (Cri) 340 a contention that the prominent features of the evidence recorded by the Court below were not at all put to the petitioner as required both by the provisions of Sections 242 and 244, Criminal Procedure Code and the conviction is, therefore, illegal. The learned Judge held that
In the instant case there has been no examination of the petitioner at all with reference to the circumstances appearing against him. If the circumstances appearing in the evidence with reference to the evidence of the witnesses had been brought to the notice of the accused either in general or in a particular way, it was possible for him to have given some explanation, If such an explanation is furnished, it was the bounden duty of the court to have considered the same before holding the accused guilty of the offence charged with. That opportunity had been denied to the petitioner.
So holding, the learned single judge set aside the conviction and sentence.
6. In another decision of the same Mysore High Court in Siddappa v. Patel Shivappa AIR 1967 Mys 248 : 1967 Cri LJ 1671 the effect of non-compliance of Section 242, Criminal P. C. was considered. The learned Single Judge held that:
The trial of summons case begins when the accused appeared or is brought before the Magistrate. Then the Magistrate should follow the provisions of Section 242, Criminal 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. Even at the time the accused was examined under Section 342, Criminal P. C. he was not questioned with reference to the circumstances appearing against him. It was incumbent on the Magistrate to see that the provisions of the law were obeyed. If the provisions of law have been disregarded, it has unodubtedly caused prejudice to the accused.
7. So holding, the learned single judge set aside the conviction and sentence.
8. The learned Counsel also relied upon the decision of the Pepsu High Court in Masthan Singh v. State AIR 1953 Pepsu 125 : 1953 Cri LJ 1256 which laid down that the omission to explain the accusation for which he was brought before the court is an illegality which cannot be cured under Section 537, Criminal P. C.
9. Relying upon these decisions, the learned Counsel for the revision petitioners urges that the trial is vitiated by illegality and hence the conviction and sentence passed against the petitioners should be set aside.
10. There is a great divergence of opinion in the High Courts of India on the effect of the non-compliance of the provisions of Section 242, Cri. P. C. Some High Courts are of the view that the non-compliance of the provisions of Section 242, Criminal P. C. is an illegality and not a mere irregularity curable under Section 537, Criminal P. C. Some others held that the omission to explain the particulars of an offence to the accused as required under Section 242, Criminal P. C. is not an illegality vitiating the trial provided that no prejudice can be shown to have been caused to the accused and the accused has been examined under Section 342, Criminal P. C. The High Court of Calcutta in Gopalakrishna Saha v. Matilal Singh AIR 1927 Cal 196 : 28 Cri LJ 155, the High of Pepsu in Masthan Singh v. State AIR 1953 Pepsu 125 : 1953 Cri LJ 1256 and the Mysore High Court in (1967 Cri LJ 1671) took the former view, while the Madras High Court in Public Prosecutor v. Sankarlingam Moopan AIR 1919 Mad 52 : 20 Cri LJ 395; the Nagpur High Court in Mt. Lahani v. Khushal AIR 1932 Nag 127 : 33 Cri LJ 938 the Patna High Court in Rajeswara Prasad Singh v. Province of Bihar AIR 1949 Pat 323 : 50 Cri LJ 676 the High Court of Hyderabad in Ahmad v. State AIR 1955 Hyd 174 : 1955 Cri LJ 1066 the Assam High Court in Nayan Ram v. Prasanna Kumar 1953 Cri LJ 1574 : AIR 1953 Assam 161 and Rajasthan High Court in State of Rajasthan v. Bhanwarlal 1957 Cri LJ 994 : AIR 1957 Raj 296 took the latter view. Thus, it is clear that the majority of the High Courts are of the view that the mere omission to state the particulars of an offence to the accused under Section 242, Criminal P. C. is not an illegality, vitiating the trial provided no prejudice can be shown to have been caused to the accused and the accused has been examined under Section 342, Criminal P. C. It is a mere irregularity curable under Section 537, Criminal P. C.
11. But in the case on hand, the learned Magistrate not only contravened the provisions of Section 242, Criminal P. C. in having failed to state the particulars of the offence to the accused and asked him if he has any cause to show why he should not be convicted, but also did not examine the accused with regard to the incriminating material brought on record against the accused in the evidence adduced by the prosecution and thus contravened the provisions of Section 244, Criminal P. C.
12. It is true that the Full Bench of the Madras High Court in Ponnuswamy v. Ramaswami AIR 1924 Mad 15 : 24 Cri LJ 833 held that the provisions of Section 342, Criminal P. C. have no application to summons cases. This decision was followed by the Full Bench of the Rangoon High Court in Emperor v. Nga La Gyi AIR 1931 Rang 244 : 32 Cri LJ 1191. But the Bombay High Court in Emperor v. Kondiba Balaji AIR 1940 Bom 314 : 42 Cri LJ 71; Lahore High Court in Demello v. Demello AIR 1926 Lah 667 : 27 Cri LJ 1000; Nagpur High Court in Bhagwan v. Emperor AIR 1926 Nag 300 : 27 Cri LJ 632; Allahabad High Court in Sia Ram v. Emperor AIR 1935 All 217 : 36 Cri LJ 1290; Calcutta High Court in Gulzari Lal v. Emperor AIR 1923 Cal 164 : 24 Cri LJ 3; Patna High Court in Gulam Rasul v. King Emperor AIR 1921 Pat 11 : 22 Cri LJ 427; Sind High Court in Emperor v. Nabu AIR 1926 Sind 1 : 26 Cri LJ 1554 held that Section 342, Criminal P. C. is as much applicable to summons cases as to warrant cases. Even if the decision of the Full Bench of the Madras High Court cited above is binding on this Court, so far as Section 342, Criminal P. C. is concerned it cannot be taken as authority with regard to Section 244, Criminal P. C.
13. The requirements of Section 244, Criminal P. C. in summons cases are mandatory and the Magistrate is bound to comply with them before the accused is required to enter upon his defence. Section 244, Cri. P. C. is independent of Section 342, Cri. P. C.
14. Section 244, Cri. P. C. reads as follows:
If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complaint (if any) and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
15. The words 'the Magistrate shall proceed to hear the accused' provided under Section 244, Criminal P. C. makes it abundantly clear that an imperative duty is cast on the Magistrate to hear the accused after the prosecution evidence was closed. It is intended to enable the accused to explain the circumstances appearing in the prosecution evidence against him. Section 244 is based on the salutary principle involved in the maxim Audi Alteram Partem (no one should be condemned unheard). The principle that 'no man should be condemned unheard' perhaps the first and foremost principle relating to the mode of administration of justice and it is the last essential which should be omitted in any record of the essential of a fair trial.
16. When the section requires that the Magistrate shall hear the accused, it certainly means that he should ask the accused what he has to say in his defence against the incriminating evidence which is brought on record against him and the accused should be heard on every circumstance appearing in evidence against him. The accused must be examined under this section whether he offers to produce the defence or not after the entire prosecution evidence was adduced. Failure on the part of the Magistrate to hear the accused of his valuable right to place his entire defence before the Court and it amounts to a fundamental error in a criminal trial and it is an error that cannot be cured by the provisions of Section 537, Criminal P. C. In this case, the Magistrate failed to apprise the accused as to what the particulars of the offence for which he has been summoned are and required to meet under Section 242, Criminal P. C. and also failed to comply with the mandatory requirements of Section 244, Criminal P. C. as to the hearing of the accused before the accused is required to enter upon the defence. From the contravention of Sections 242, Criminal P. C. and 244, Criminal P. C, it is clear that before the trial is started, the accused not only was not given opportunity to know the particulars of the offence required to meet but also he was not given opportunity even after the trial to make their statements in order to explain away the circumstances appearing in the prosecution evidence against them. Thus, the non-compliance of the requirements of Section 244, Criminal P. C. would undoubtedly cause prejudice to the accused resulting in failure of justice even though the accused was defended by the advocate. I have, therefore, no hesitation to hold that the trial Magistrate committed illegality which cannot be cured by Section 537, Criminal P. C. Hence the conviction and sentence passed against the accused are unsustainable.
17. In the result, I find merits in the revision case and it is therefore allowed and the conviction and sentence passed by the Magistrate are set aside and the fine amounts, if already paid, shall be refunded to the petitioner.