(1) This is a reference under Section 438 of the Criminal Procedure Code by Shri M. L Puri Sessions Judge of Hissar, for setting aside an order of acquittal of the respondent by a Magistrate First Class at a summary trial.
(2) The Municipal Committee, Amritsar, filed a complaint against the respondent, complaining of an offence under Section 219 of the Punjab Municipal Act. The case was tried by Shri R.S. Pathania, Magistrate First Class Sirsa, in exercise of summary jurisdiction that vested in him. The learned Magistrate, at the conclusion of the trial, acquitted the respondent without recording a detailed order or giving the reasons for the same. The laconic order passed by him reads as follows:-
On an application for revision of the order having been made by the complainant-Committee, the learned Sessions Judge has recommended to this Court that the acquittal be set aside for the following reasons:--
'The case being appealable one, it was incumbent on the Magistrate to record substance of the evidence in the case and also to record a judgment before passing the sentence. This is evident from Section 264 of the Criminal Procedure Code. The learned Magistrate, however, did not make compliance with the above-referred provision, and he simply recorded the order 'Heard. Acquitted.' This is no judgment in the eye of law, and as such it cannot be up held.'
(3) The learned Sessions Judge does not appear to have properly interpreted Sections 264 and 414 of the Criminal Procedure Code, and the recommendation made by him is misconceived. The procedure for the trial of summary cases is laid down in Sections 262 to 265 of the Criminal Procedure Code. Section 262 merely lays down that at such trials, the procedure prescribed for summons cases shall be followed in summons cases. and the procedure prescribed for warrant cases shall be followed in warrant cases, except as hereinafter mentioned. Section 263 of the Criminal Procedure Code prescribes how the record for the cases in which no appeal lies is to be prepared. The opening words of this section run as follows:-
'In cases where no appeal lies, the Magistrate or Bench of Magistrates need not record the evidence of the witnesses or frame a formal charge; but he or they shall enter in such form as the State Government may direct the following particulars:--
'(a) to (g) *****;
(h) the finding, and, in the case of a conviction a brief statement of the reasons therefor;
(I) the sentence or other final order; and
(j) the date on which the proceedings terminated.'
(4) It is thus apparent that in cases in which no appeal lies, a Magistrate trying a case in exercise of his summary jurisdiction is not required to record the evidence of the witnesses. As regards the final order which is to be passed by him, this section provides that a brief statement of reasons has to be recorded only where the accused is convicted. It does not lay down that even in cases of acquittals the reasons for the same have to be recorded by the Magistrate or the judgment has to comply with the provisions of Section 367 of the Criminal Procedure Code.
(5) This brings us to Section 264 of the Criminal Procedure Code, which is in the following words:--
'In every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall record the substance of the evidence and also the particulars mentioned in Section 263 and shall before passing any sentence, record a judgment in the case.'
(6) From this, it is evident that it is only in cases in which 'an appeal lies' that the Magistrate at a summary trial is required to record, in addition to the particulars contained in Section 263, the substance of evidence and a judgment. Now, what is to be considered is the meaning of the expression 'cases in which an appeal lies.' In order to determine whether or not an appeal lies against a particular order passed by a Magistrate in the exercise of his summary jurisdiction, we have to refer to the provisions of Chapter XXXI of the Criminal Procedure Code. Section 414 thereunder lays down:
'notwithstanding anything here in before contained, there shall be no appeal by a convicted person in any case tried summarily in which a Magistrate empowered to act under Section 260 passes a sentence of fine not exceeding two hundred rupees only.'
(7) In other words, the law provides that where at a summary trial an accused person is sentenced to a fine less than Rs. 200/- he shall have no right of appeal. Putting it differently, what the legislature lays down in Section 414 of the Criminal Procedure Code is that an order passed at a summary trial in which a person is acquitted, or is sentenced to a punishment of fine which is less than Rs. 200/-, the order will not be appealable.
(8) The learned Sessions Judge seems to have been labouring under the impression that the expression 'cases in which an appeal lies' occurring in Section 264 of the Criminal Procedure Code is equivalent to 'cases in which the offence is punishable with a sentence exceeding a fine of Rs. 200/-. This is clearly untenable. The words used both in Sections 264 and 414 of the Criminal Procedure Code are clear and unambiguous, and the result of the combined reading of both these sections is that it is only in cases in which an accused person is convicted in the course of a summary trial and sentenced to fine exceeding Rs. 200/- that an appeal would be competent, and the Magistrate trying the case would be duty bound to record the substance of the evidence and a judgment. In other words where the case tried summarily results in acquittal or in award of punishment of fine less than Rs. 200/-, no appeal would lie against the order of the Magistrate and, accordingly, he is not bound to comply with the requirements of Section 264 of the Criminal Procedure Code relating to recording of evidence and judgment. Those cases would fall under Section 263 of the Criminal Procedure Code, and it is the procedure laid own therein that has to be applied. As has been observed earlier, this section specifically lays down that in cases in which no appeal lies, the Magistrate need not record the evidence, and his final order may consist merely of his finding and the sentence. It is further provided in this section that it is only where conviction is recorded that a brief statement of reasons thereof will have to be given by the Magistrate and not if the trial ends in acquittal. In these circumstances, the recommendation of the learned Sessions Judge is not justified, and the order of the Magistrate acquitting the respondent cannot be interfered with as violative of the provisions of Section 264 of the Criminal Procedure Code. I, accordingly, reject the reference and uphold the order of the magistrate.
(9) Reference rejected.