M.M. Punchhi, J.
1. These two criminal matters (Crl: Revision No. 58 of 1981 and Crl. Misc. No. 871-M of 1981) arise out of the same cause. They are at the notice of motion stage, but the learned Counsel agree that they can be disposed of finally, since the records summoned for are available and the counsel are in a position to argue the matter out.
2. Facts giving rise thereto are thus.
3. Principal Sudarshan Singh of Malwa Khalsa Higher Secondary School, Ferozepur City filed a complaint under Section 500 of the Indian Penal Code against Raja Trehan in the Court of the Chief Judicial Magistrate, Ferozepur. After recording the preliminary evidence, the accused was summoned. In the list of witnesses, appended as a foot note to the complaint, four witnesses were mentioned. They were the complainant himself, the Sub-Divisional Officer (Civil) Ferozepur, the Public Grievances Officer, Ferozepur and Mr. Balwant Singh, The complainant examined Mr. Balwant Singh P W. 1, Mr. H. L. Sikka P. W. 2 and himself as P. W. 3, before the Court. The record reveals that the evidence of Mr. H. L. Sikka P. W. 2, was only meant to prove a report dated 11th November, 1975 which he had given as the Public Grievances Officer, Ferozepur, otherwise having designation as the Sub-Divisional Officer (Civil). Thus in fact there were three witnesses, in the list and all of those witnesses stood examined. However, at the time of the closure of the evidence by the complainant, it was mentioned that precharge evidence had been closed. The learned Chief Judicial Magistrate vide his order dated 31st March, 1979, discussed the prosecution evidence and discharged the accused. The complainant filed a revision before the Court of Session against the order of discharge. The Additional Sessions Judge, Ferozepur allowed the same on 30th August, 1980, for further enquiry in the matter. The case was thus remanded.
4. After remand no fresh evidence was adduced by the complainant; rather there was none except as to what was already on the record. Thereupon the learned Chief Judicial Magistrate framed charge against the accused under Section 500 of the Indian Penal Code. That order has been challenged by the accused petitioner in Criminal Revision No. 58 of 1981. During the pendency thereof Criminal Misc. No. 871-M of 1981 was preferred by the accused-petitioner challenging as well the order of the Additional Sessions Judge, Ferozepur dated 30th August, 1981, which led to the framing of the charge. Since common questions of law and fact arise in these two cases, they will be disposed of by this judgment.
5. The record summoned has been perused. It appears that the trial Magistrate was not aware of the changes brought about by the new Code of Criminal Procedure, 1973. In the old Code of 1898, the offence under Section 500 of the Indian Penal Code could be tried as a warrant case, as the said offence was punishable for a term exceeding one year. Now under the new Code the said offence is triable not as a warrant case, but as a summons case, for a warrant case procedure would apply to an offence which is punishable with a term exceeding two years. It is plain that the offence under Section 500 of the Indian Penal Code is punishable with simple imprisonment for a term, which may extend to two years, or with fine, or with both. This distinction does not seem to have been present in the mind of the learned trial Magistrate or even the parties concerned.
6. The case proceeded as if it was to be dealt with as a warrant case. It was in that light that the complainant made a statement before the trial Magistrate that he was closing his pre-charge evidence. It is under that misunderstanding that the trial Magistrate discharged the accused applying specifically Section 245 of the Code of Criminal Procedure. Thai section falls in Chapter XIX (B), meant for the trial of warrant cases instituted otherwise than on a police report. It is on that misunderstanding that the learned Additional Sessions Judge also in revision thought that in exercise of powers under Section 398 of the Code of Criminal Procedure an order of discharge could be upset and further enquiry ordered. It is to challenge such a string of errors that Criminal Misc. No. 871-M of 1981 has been pressed, and rightly. And if this is so, the logical result which flows therefrom is that in the process of further enquiry, the trial Magistrate fell again into the same error in framing the charge against the accused-petitioner. For precisely the same reasons the order of charge is being challenged. And it may again be said, rightly.
7. The learned Counsel for the complainant-respondent is not in a position to dispute the legal aspect aforesaid analysed, but says that the effect arising therefrom would be that the matter would still have to proceed with the trial Magistrate, as a summons case. According to him it is incumbent upon the Magistrate not only to examine the evidence which may be produced in support of the prosecution under Section 254 of the Code, but he has also necessarily to hear the accused and take all such evidence as he produces in his defence. Admittedly no such opportunity arose. The Magistrate did not hear the accused and did not take any evidence as he may have wished to produce in his defence. According to the learned Counsel unless the stage of Section 254 of the Code is completed in letter and spirit, the occasion to proceed under Section 255 of the Code would not arise and necessarily no order of acquittal could be passed by the trial Magistrate; rather the order of discharge could not be spelled out to be an order of acquittal. This stance has been adopted because the learned Counsel for the petitioner insisted that the said order of discharge dated 31st March, 1979, tantamounts to an order of acquittal, against which an appeal was competent at the instance of the complainant under Section 378(4) of the Code and a revision petition was clearly barred at his instance under Sub-section(4) of Section 401 of the Code. Here again the learned Counsel for the respondent has no quarrel with the legal deduction afore given. His objection is confined only to the pivotal point that the accused, petitioner here, has not been required to open his mouth and to give his evidence.
8. On careful thought and consideration given to the contentions advanced, I have come to the conclusion that there is merit in what the learned Counsel for the petitioner says. The Code envisages a few kinds of trial. Comparison of trials in a warrant case and a summons case would be useful to spell out the spirit underlying Section 254 of the Code. It would be noticed that in trial of a warrant case Section 244 of the Code warrants that the prosecution must produce all evidence in support of it. Under Section 245 of the Code the Magistrate is required to consider it and if he finds that no case has been made out against the accused, which, if unrebutted, would warrant his conviction, the Magistrate can discharge him, without hearing the accused or taking his evidence. In a trial of summons case the Magistrate under Section 254 is required to hear the prosecution and take all such evidence as may be produced in support of it, and also to hear the accused and take all such evidence as he produces in his defence. It is then that Section 255 of the Code authorises the Magistrate, upon taking the evidence referred to in Section 254, to pronounce the accused guilty and sentence him or to acquit him. In either situation the prosecution would first have to prove by its own evidence that the accusation against the accused, if unrebutted by him, stands substantiated beyond al] reasonable doubt. But if the prosecution itself is unreliable and cannot warrant by itself conviction of the accused, the accused may not open his mouth and may not produce his evidence altogether. The mere ritual in the instant case of asking the accused formally, whether he wanted to be heard and produce his defence evidence, need not have been, observed as it would not have served any useful purpose. The prosecution case taken as a whole was not found worthy of even formally being put in an accusation in the form of a charge to the accused. Thus the conclusion is inescapable that that order of discharge passed has to be read as an order of acquittal deemingly to have been passed under Section 255 of the Code. And on that finding no revision was competent before the Additional Sessions, Judge, Ferozepur and thus his order dated 30th August, 1980 is illegal and has to be, quashed. As a sequel there- to the charge against the accused-petitioner too, is groundless, and illegal. That too has to be quashed.
9. For the foregoing reasons Criminal Revision No. 58 of 1981 and Criminal Misc. 871-M of 1981 are hereby allowed. The impugned orders and the proceedings are hereby quashed.