1. This is a reference under Section 438, Criminal P. C. One Ratanlal filed a complaint under Sections 439, 349 and 503, Gwalior Criminal P. C. against Haiku and Mst. Gumni in the Court of the Sub-Divisional Magistrate, Basoda. The Sub-Divisional Magistrate framed a charge under Section 349 on 18-5-1950. On 31-8-1950 he dismissed the complaint and acquitted the accused, because the complainant was absent. The complainant filed a revision before the Additional District Magistrate, Bhelsa, who had made this reference.
2. The offence under Section 503, Gwalior Penal Code being punishable with two years' rigorous imprisonment, the complaint was rightly tried as a warrant case. The learned Sub-Divisional Magistrate framed a charge under Section 349. A complaint under Section 349 is a summons case. Hence the Magistrate gave the accused benefit of Section 247, Criminal P. C. and acquitted him. The question for consideration is whether when a trial is started as a warrant case a Magistrate can change the procedure because he frames the charge of an offence which is triable as a summons case. The view taken by various High Courts is where a trial is started as a warrant case the procedure should not be changed even if the accused appears to have committed an offence triable as a summons case. In - 'Ganga Saran v. Emperor' AIR 1921 All 282 (A) the learned Judge observed as follows:
Having commenced the trial of the case as a warrant case, regard being had to the nature of the offences complained of, the learned Magistrate was not justified in taking down the statements of the accused immediately after he had taken down the Statements of the complainant who had not even been cross-examined till then. He ought to have proceeded in the regular way, heard out the evidence for the prosecution, allowed the accused to cross-examine if they so chose, and then framed a charge whether of the offences about which the complaint had been made or of minor offences if only those were proved, and then charged the accused of having committed such offences as in the opinion of the Court might have been pro-per. In that case the accused would have had, if they so wished a further opportunity to recall and cross-examine the witnesses for the prosecution and show that they were not worthy of credit. All this opportunity of double cross-examination has been lost to the accused.
The same view was taken by Kendall J. in - 'Govind v. Emperor' AIR 1927 All 270 (1) (B), Madras High Court took a similar view in - 'Public Prosecutor v. Thawasalandi Thevan' reported in 4 Ind Cas 1039 (Mad) (C). This view is based mainly on the ground that when a case Starts as a warrant case the accused may reserve his right of cross-examination and hence if the procedure is changed he may lose his right of cross-examination. If therefore it is necessary in the interest of the accused to stick to the procedure of warrant cases when it is once started, it is not fair, to change it simply because the accused derives benefit of Section 247 thereby. The procedure followed by the learned Sub-Divisional Magistrate is, therefore, improper.
3. I, therefore accept the reference and setting aside the order of the Sub-Divisional Magistrate dated 31-8-1950 direct that the case be tried according to law.