1. This is an application for revision of an order of Mr. Piarey Lal, Barrister-at-law, First Class Special Magistrate of Meerut, convicting the applicants under Section 323 of the Indian Penal Code, and sentencing them to a fine of Rs. 25 each and also ordering them to execute a bond in Rs. 100 each to keep the peace for one year. Only two points are urged in revision. The first is that the Magistrate tried the case summarily, but he did not record any notes of evidence or at any rate did not preserve any notes of evidence on the record. The second is that the order passed under Section 106 of the Criminal P. C. is illegal.
2. Now with regard to the first point the Magistrate himself says that he did make some notes of the evidence of the witnesses for his own information, but he did not preserve these notes and keep them on the record. He says he was not required to do so. Now there can be no doubt that a certain number of witnesses were examined in this case, but it does not appear from the judgment as to who these witnesses were. There is a reference to the evidence of three witnesses only, but the names of two are not disclosed. The name of the only witness which is disclosed in the judgment is Dr. Murari Lal. He must have examined the injuries of one of the complainants. There is, therefore, nothing in the judgment itself which could show what the evidence of these witnesses was, and, as admitted by the learned Magistrate, there are no notes of evidence kept on the record. So far it is clear. But it is contended on behalf of the applicants that although the object of a summary procedure is to shorten the course of a trial, it is nevertheless incumbent on the Magistrate to put on record sufficient evidence to justify his order. In support of this contention reliance is placed on Ainuddi Sheikh v. Queen-Empress  27 Cal. 450. It is also contended that if at the commencement of the trial the Magistrate is unable to determine whether the proper sentence to be passed should be an appealable one or not he must make a memorandum of the substance of the evidence of each witness as his examination proceeds. It is further urged that if he actually does so the notes of the evidence must form part of the record of the case and cannot be destroyed by him. And it is lastly contended that where the Magistrate does record the evidence but subsequently destroys the notes the conviction must be set aside. In support of this contention reliance is placed upon Satish Chandra Mitra v. Manmath Nath Mitra A.I.R. 1921 Cal. 165. Now if these two rulings of the Calcutta High Court are followed then the applicants have made out a good case for interference. The question is if these rulings ought to be followed. In my opinion these rulings should be followed specially when there is no ruling to the contrary of the Hon'ble High Court of Allahabad. I, therefore, hold that the destruction of the notes of evidence has rendered the conviction improper.
3. With regard to the second point the case of the applicants is clear. It was a case under Section 323 of the Indian Penal Code and it arose simply on account of a sudden altercation over a trivial matter. Now Section 323 of the Indian Penal Code is not an offence referred to in Section 106 of the Criminal P. C., but even then an order can be passed after a conviction under this section if it was found by the Magistrate that the offence involved a breach of the peace. But there must be a finding of the Magistrate; otherwise his order is not justified. In Muhammad Rahim v. Emperor it was laid down that an order under this section can only be passed when in a case of causing simple hurt a breach of the peace is involved. It was also held that the Magistrate cannot merely on the ground that the parties were on bad terms bind the accused down. Under these circumstances I hold that the order passed tinder Section 106 of the Criminal P. C. is not legal.
4. I, therefore, submit this case to the Hon'ble High Court with a recommendation that the conviction of the applicants under Section 323 of the Indian Penal Code and the order under Section 106 of the Criminal P. C. both be set aside and such further orders may be passed by the Hon'ble Court as are deemed fit. The record shall be submitted to the Hon'ble Court after the explanation, if any, of the Magistrate concerned is received.