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K. Vidyanand Vs. Erramma and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1962CriLJ463
AppellantK. Vidyanand
RespondentErramma and anr.
Excerpt:
.....not the general provision, following the well-known rule of interpretation of statutes, that a special or specific provision excludes the application of the general provision. 16. for all the above reasons, i am clearly of opinion that the mandatory clause in section 342, criminal proce-idure code, is not applicable to the trial of summons cases. hence, no exception could be taken to the finding of guilty reached by the court below on this ground, which finding is clearly supported by the evidence adduced in the case......and sentence had not heard the evidence in the case at all, and that section 350 of the code of criminal procedure applied only to cases where at least a portion of the evidence had been heard and recorded by the magistrate, who ultimately pronounced the finding and sentence. the second point taken is that the mandatory provision contained in section 342, criminal procedure code, had not been complied with; and that the accused had not been questioned in accordance therewith on the conclusion of the prosecution evidence, and that the failure to comply with that provision vitiated the trial, and therefore, the conviction and sentence passed by the magistrate cannot be held to be valid and sustainable.4. mr. chobe advisedly refrained from canvassing the questions of fact and the.....
Judgment:
ORDER

Sanjeeva Rao Nayudu, J.

1. Both these revisions are directed against the judgment of the Vlllth City Magistrate Hyderabad, dated 23rf May, 19S0, finding the accused (petitioner in Cri. Revision Case Mo. 512/60) hereinafter referred to as the accuses, guilty of an offence Under Section 323, Indian Penal Code, and sentencing him to pay a fine of Rs. 50/-. Criminal Revision Case No. 525 of 1960 has been preferred by the complainant in the case asking for enhancement of the sentence. The revisions arising out of the same judgment are heard together.

2. The facts leading up to these revisions may be briefly noticed:

On 31-12-1959 at about 6 p. m. the complainant (Petitioner in Cri. R. C. No. 525 of 1960) hereinafter referred teas the complainant, went to the house of the accused for the purpose of asking him for the repayment of a loan previously advanced by her to the accused. The accused and his wife came out of the house, and the accused beat her with a ruler on the head, and on or around the thighs. A Police Constable had come there and took the complainant and the accused to the Police Station, where the complainant lodged a report, which, however, was treated as non-cognizable by the Police and so no further action, was taken by them. Consequently, the complainant filed a private complaint on 11-1-1960 in the Court of the VIII City Magistrate. Her sworn statement was taken on 19-1-1960 and the case was taken on file only against the present accused Under Section 323, Indian Penal Code. The evidence of the prosecution was commenced to be recorded on 18-3-1960. Four witnesses for the prosecution were examined. Subsequently, on 4-4-1960, defence witnesses 1 and 2 were examined on behalf of the accused. At this stage, the then presiding Magistrate was transferred and the successor took over the casa, and on 23-5-1960, the Magistrate heard the arguments 2nd convicted and sentenced the accused as aforesaid.

3. Two points have been urged by Mr. Chobe, the learned Counsel for the accused. Firstly, that the conviction and sentence should be set aside and a retrial ordered in view of the fact that the Magistrate who passed the conviction, and sentence had not heard the evidence in the case at all, and that Section 350 of the Code of Criminal Procedure applied only to cases where at least a portion of the evidence had been heard and recorded by the Magistrate, who ultimately pronounced the finding and sentence. The second point taken is that the mandatory provision contained in Section 342, Criminal Procedure Code, had not been complied with; and that the accused had not been questioned in accordance therewith on the conclusion of the prosecution evidence, and that the failure to comply with that provision vitiated the trial, and therefore, the conviction and sentence passed by the Magistrate cannot be held to be valid and sustainable.

4. Mr. Chobe advisedly refrained from canvassing the questions of fact and the evidence in the case, realising that the scope of the exercise of the revisional powers of this Court is limited, and confined mainly to questions of law.

5. As regards the first point, a reference to Section 350, Criminal Procedure Code, makes it clear that it is open to the Magistrate who made the finding and passed the sentence in the case, to do so on the evidence recorded wholly or in part by his predecessor. This Section is in the following words:

(1) Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself: Provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.

It is clear from the above, that a successor Magistrate could validly pronounce judgment in a case based on the evidence recorded wholly by his predecessor. There is, therefore, no substance in this contention.

6. The next and certainly more important argument of the learned Counsel for the accused is, that Section 342, Criminal Procedure Code, had not been complied with in this case. It must be noticed at the outset that before the accused let in defence evidence in the case, he took no objection to the .procedure followed by the learned Magistrate, nor dia he offer to make an additional statement to the one he already made when he was questioned generally on the case Under Section 242, Criminal Procedure Code, following the procedure prescribed for the Uial of summons cases.

7. Section 342 Criminal Procedure Code is in the following words:

(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the 'Court may, at any stage of any inquiry, or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.

2. The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court and the jury (if any) may draw such inference from such refusal or answers as it thinks lust.

3. The answers given by the accused may he taken into consideration in such inquiry or trial, and put In evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show (he has committed.

4. No oath shall be administered to the accused when he is examined under Sub-section (1)'. It may be seen from the above that there are two occasions contemplated by the Section when the accused could be examined. The first one relates to the putting of such questions as the Court considers necessary, at any stage, of the trial or inquiry, for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him; and the second one contemplates the questioning of the accused generally on the case, after the witnesses for the prosecution had been examined, and before the accused is called on for his defence, again for the same purpose, namely of enabling the: accused to explain any circumstances appearing in the evidence against him. In regard to the former, there is no obligation on the Court to put the questions. The questioning is purely optional. Whereas with reference to the latter, It is imperative on the Court to question the accused generally on the case before he is called on for his defence, and after the prosecution witnesses had been examined.

8. There is no doubt that having regard to the materials on record, it does not appear that the accused in this case ,had been questioned in accordance with and Under Section 342, Cri. Pro. Code, after the evidence of the prosecution had been concluded and before the defence evidence commenced. The question for consideration, therefore, is whether this Section applies at all to trials, of summons cases, and if it does, as the mandatory provision contained in the Section had not been complied with in terms of the section, what would be the effect of such non-compliance on the trial and the conviction that had resulted?

9. Section 342, Criminal Procedure Code, I Is a Section which figures in Chapter XXIV of the Code dealing with 'the general provisions as to enquiries and trials.' A perusal of the various sections in this Chapter shows that they contain provisions applicable to different types of proceedings in different Courts. Sections 337 to 339-A deal with the various situations arising on the tendering or granting of pardon. Section 341 deals with the procedure to be followed where the accused is unable to understand the proceedings. Section 342-A declares the right of the accused to give evidence on his behalf or in defence of the other accused tried along with him. Section 344 deals with the power to postpone or adjourn proceeding from time to time. Section 345 deals with the circumstances in which certain offences could be compounded. The other provisions seem to apply generally, except otherwise stated, to all enquiries or trials. Hence, in the absence of an express restriction as to the scope and applicability of Section 342, Criminal Procedure Code, it must prima facie be deemed to apply to all types of trials and enquiries including trials in summons cases. But the difficulty arises on account of the use of the expressions 'before he is called on for his defence' in the section. Considering the provisions contained in Chapter XX of the Code which deal with the trial of summons cases, it may be noticed that the procedure is materially different from that followed in warrant cases and in Sessions cases. For example, there is no provision for the framing of a charge or the recording of a plea thereon. All that Section 242, Criminal Procedure Code says is that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a charge.

Section 243, Criminal Procedure Coda says that if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him, and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. Section 244 deals with a situation where no such admission is made, and the Section provides that the Magistrate shall proceed to hear the complainant 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, and that, to that end, on the application either by the complainant or by the accused, the Magistrate may issue summons to witnesses directing them to attend or produce documents etc. Then follows Section 243, which is in the following words:

(1) If the Magistrate upon taking the evidence referred to in Section 244 and such further evidence (if any) as he may, of his own motion, cause to be produced, and (if he thinks fit) examining the accused, finds the accused not guilty, he shall record an order of acquittal.

2. Where the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, shall, if he finds the accused guilty, pass sentence upon him according to law.

10. It may be seen from the above sections that the detailed procedure to be followed in the trial of summons cases is laid down step by step. These steps consist of the following, to be taken in the sequence as shown be-1nw:

The Magistrate:

(1) Shall state to the accused the particulars of the offence of which he is accused and question him if he has any cause to show why he should not be convicted;

2. if the accused admits the offence, shall record the admission and convict him, if no sufficient cause is shown why he should not be convicted;

3. if no such admission is made by the accused or fie is not convicted under (2) above, shall hear the complainant; and

4. shall take all the evidence that is produced in support of the prosecution case;

5. shall hear the accused; and

6. shall take all such evidence as the accused produces in his defence;

7. may take such further evidence, if any as he may of his own motion cause to be produced;

8. may examine the accused if he thinks fit;

9. shall give his finding: if not guilty acquittal.

if guilty conviction followed by sentence, if action not taken Under Section 349 or 562, Criminal Procedure Code.

11. It may be seen from the above that the provisions are self-contained and fairly complete, and that, after the questioning, of the accused at the outset of the case Under Section 242, Criminal Procedure Code, provision is made for hearing the accused after the entire prosecution evidence is recorded and before the defence evidence is commenced to be recorded, and on the recording of all the evidence it made, a further provision is made for the examination of the accused if the magistrate thinks fit to do so, Under Section 245(1) Crl. P. C. These are specific provisions dealing with the examination of the accused in the course of the trial of a summons case.

12. Section 342, Criminal Procedure Code contains general provisions regarding the examination of an accused during trials generally. But as specific provisions on the same matter are contained in the same Code, applicable only to trials of summons cases, these provisions should apply and not the general provision, following the well-known rule of interpretation of statutes, that a special or specific provision excludes the application of the general provision.

13. Further, when two provisions exist in a statute, the normal rule of interpretation is that they should be construed in a manner which would permit of their not coming into conflict. If Section 342, Criminal Procedure Code should be construed as applying to the procedure in summons cases, that Section imposes an obligation on the Court to question the accused generally on the ca&e; after the prosecution witnesses have been examined and before the accused is called on for his defence, whereas Section 245(1) Cr.PC requires the Magistrate to examine the accused after the entire evidence both for prosecution and defence is taken, and that too only if the Magistrate thought fit to do so. Thus, in a case where the Magistrate does not think it fit to examine him, he need not examine the accused according to Section 245(1) Cr.PC But, if Section 342 Cr. P. G. is held to apply to trials of summons cases, the Magistrate would be obliged to question the accused, notwithstanding the fact that he thinks that such examination is unnecessary. Obviously, the legislature could not have Intended to place Magistrates in such a position of conflict and inconsistency. The proper construction to place on Section 342 Cr.PC therefore is, that it would only apply to those inquiries and trials in the procedure for which there is no specific provision for the examination ot the accused person, and such a specific provision contained in Sections 242 and 245(1) Cr.PC Hence, I experience no difficulty in coming to the conclusion that Section 342, Criminal Procedure Code, could not be held to apply to the trials of summons cases.

14. Another significant point which, no doubt, is not conclusive, is that while all the sections in Chapter XX deal with the powers and duties of Magistrates, Section 342 Cr.PC employs only the expression 'Court' and there is no reference to 'Magistrates' in it. No doubt, a Magistrate exercising criminal jurisdiction is a 'Court1. But the Cods maintains throughout a distinction between a 'Magistrate' and a 'Court', in certain matters, for example, in the trials of summons cases.

15. There is also another circumstance which supports ths conclusion reached by me in this regard; end that is, that in none of the provisions dealing with the procedure for the trial of summons cases by Magistrates, is there any stage where the accused is to be called on for his defence. A similar clause occurs in the procedure for Ses-bions Cases, for example in Section 283 Cr.PC the words employed being:

the Court shall call on the accused to enter on his defence.

Similarly, in trials of warrant cases, we find similar references in Sections 256 and 257 Cr.PC which deal with the defence of the accused. In Section 256, Cr.PC the words used are:

The accused shall then be called upon to enter upon his defence and produce his evidence.

In Section 257, Cr.PC the words 'after he has entered upon his defence' occur. A perusal of the Section in Chapter XX shows that there is no stage contemplated therein when the accused is to be 'called on for his defence' and hence there is no stage when the second portion of Section 342, Cr.PC containing the mandatory clause could be fitted into the procedure applicable to the trial of summons cases under the Code.

16. For all the above reasons, I am clearly of opinion that the mandatory clause in Section 342, Criminal Proce-idure Code, is not applicable to the trial of summons cases.

17. In this connection, Mr. Chobe invited my attention to a number of decisions which disclosed a clear conflict of opinion on the subject, in the views expressed by the different High Courts. In Ponnuswamy Odayar v. Ramaswamy Thathan ILR 46 Mad 758 : A.I.R. 1924 Mad 15 (FB) it was laid down by a Full Bench of the Madras High Court consisting of five Judges that the mandatory provisions of Section 342 of the Criminal Procedure Code, which require the Court to question the accused generally on the case after the examination of the prosecution witnesses, do not apply to trials in summons cases. I am respectfully in agreement with the views expressed therein. In Varisal Rowther v. King-Emperor ILR 46 Mad 449 : A.I.R. 1923 Mad 609 (FB) another Full Bench of the Madras High Court consisting of five Judges, considered the question of the applicability of Section 342(1) Cr.PC to warrant cases and it was therein held that the Section is applicable to trials of warrant cases.' The learned Judges were not dealing with the question whether the Section was applicable to trials of summons cases.

18. The decision in ILR 46 Mad 758; (A.I.R. 1924 Mad 15) (FB) has bean followed by the Rangoon High Court In Emperor v. Nga LaGyi AlR 1931 Rang 244wherein agreeing with the Full Bench decision of the Madras High Court, the learned Judges held that Section 342 Cr.PC did not apply to trials of summons cases.

19. A contrary view has been taken in Gulabjap v. Emperor A.I.R. 1922 Bom 290; Bechu Lai v. Injured Lady A.I.R. 1927 Cal 250 and Sia Ram v. Emperor A.I.R. 1935 All 217. But for the reasons stated above, I regret I am unable to follow these decision;.

20. Coming to the actual procedure that has been followed by the Magistrate in the instant case, we find that after he had put the substance of the proseqution case to the accused and invited his reply thereto, he had recorded the prosecution evidence and the defence evidence adduced on behalf of the accused. It would appear, therefore, that the Magistrate himself did not think it fit to further examine the accused nor did the accused himself offer to make any further statement. Further, on the defence taken by the accused in the case, which was one of alibi, in that he claimed he was elsewhere and not at his house at the time of the occurrence, no prejudice could really have been caused to him by his not having been afforded a further opportunity of explaining the prosecution evidence against him, of which he was fully aware at the time he examined his defence witnesses, even on an assumption that Section 342, Criminal Procedure Code is regarded as applicable to trials of summons cases. Hence, no exception could be taken to the finding of guilty reached by the Court below on this ground, which finding is clearly supported by the evidence adduced in the case.

21. The only question to consider is one of sentence. The petitioner in Crl. R. C. No. 525 of 1960 pleaded that the accused in this case who is a legal practitioner, had been Jlealt with lightly by the Magistrate, and that the proper sentence for having beaten her in a manner so as to cause a bleeding injury was to sentence him to a term of imprisonment coupled with a heavy fine. The fact that the accused is a legal practitioner is by no means a circumstance which could be accepted in mitigation or extenuation. A legal practitioner who is an adviser on legal matters to the public who might consult him and a member of the honourable profession of lawyers, is expected to keep himself more carefully within the pale of law than an ordinary citizen. Further, in the matter of the commission of an offence which is proved and the sentence that should be meted out for such offence, Law does not take note of personalities, and is not a respector of persons.

22. In my opinion, the sentence of fine of Rs. SO/-awarded by the learned City Magistrate is far too light and incommensurate with the gravity of the acts proved against the accused. In the interests of justice, the sentence undoubtedly requires to be enhanced. Taking all the facts and circumstances of the case into consideration, I do not however, consider that a sentence of imprisonment is called for in this case. Accordingly, while confirming the conviction in this case, I would enhance the sentence of fine of Rs. 50/- awarded by the Magistrate, to a fine of Rs. 500/-I further direct that in default of payment of fine, the accused shall suffer rigorous imprisonment for three months I direct that out of the fine, if recovered, an amount of Rs. 250/- will be paid to the complainant towards her expenses in the prosecution of this case and towards compensation for the injury sustained by her. Hence, Criminal Revision Case No. 512 of 1960 is dismissed and Criminal Revision Case No. 525 of 1960 is allowed in the manner to the extent, indicated above.


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