1. This is a reference made by the District Magistrate at Kottayam inviting the opinion of this Court on the question of the legality of the order passed by the Sub-Divisional Magistrate, at Kottayam acquitting accused 2, 3 and 4 in C. C. 635/1951 on the file of his Court. It was a case registered on the basis of a private complaint. The case put forward by the complainant is that accused 1 to 4 wrongfully entered into a cocoanut garden in Sy. No. 197/48 of the Kottayam Patkuthy comprising of 14 cents in his possession and enjoyment and committed theft of 150 cocoanuts on 10-10-1951.
The Magistrate accepted the complaint and recorded the sworn statement of the complainant on 11-10-1951, and issued summons to all the four accused persons, obviously indicating that the Magistrate was satisfied that there was a case to be enquired into. On 19-11-1951 all the accused appeared before the Court and the Sub-Divisional Magistrate is seen to have proceeded straightway to record the statements of these accused and on the strength of those statements to pass an order of acquittal in favour of accused 2 to 4 and directing the case to proceed against the 1st accused alone.
It is significant to note that before proceeding to pass such an order of acquittal the Magistrate did not care to examine the complainant or the witnesses mentioned in the complaint to be examined in proof of the criminal acts attributed to the accused. The Magistrate's order purports to be one under Section 245 of the Criminal Procedure Code.
2. From the circumstances stated above it is clear that the Magistrate had not even read Section 245 before proceeding to act under that section in passing an order acquitting accused 2 to 4. Clause 1 of that section states that:
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.
Section 244 states that:
If the Magistrate does not convict the accused-under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), 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 : Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
Clauses 2 and 3 of that section provide for the issue of summons to the witnesses to be examined. in the case. Section 243 provides for convicting the accused on the first hearing day itself if the accused admits that he has committed the acts alleged against him and does not show cause why he should not be convicted. In the present case none of the accused pleaded guilty to the charge, but all of them pleaded not guilty.
Thus the Magistrate could not act under Section 243. and he was bound under Section 244 to proceed to hear the complainant and to make all such evidence as the complainant wanted to adduce in support of his case. The direction to that effect contained in Section 244 is mandatory and without complying with the direction contained in that section, the Magistrate has no jurisdiction to deal with the case under Section 245 and to pass an order acquitting any or all of the accused.
Such an order passed in clear violation of the express provisions contained in Sections 244 and 245, Criminal P. C., is clearly illegal and unsustainable. Such a patent illegality appears to have been committed by other Magistrates also in the past as is evident from the cases reported in Emperor v. Varadarajulu Naidu AIR 1932 Mad 25 (2) (A) and in K. K. Subbier v. Lakshmana Iyer AIR 1942 Mad 452 (1) (B).
3. The reason stated by the Sub-Divisional Magistrate to justification of the order acquitting accused 2 to 4 is still more curious. He has staled that accused 2 and 3 are the sons of the 1st accused and students depending on their lather, the 1st accused, and that 'I do not think there Will be any useful purpose in retaining them as accused in this case'. Regarding the 4th accused the learned Magistrate has stated as follows : 'The 4th accused is a tree-climber who would do the work for any one on hire. There is hardly any necessity of retaining him as an accused in this case which relates to an offence of trespass.'
It is strange that the First Class Magistrate should have been so ignorant of even the elementary principles of criminal law. He appears to have been under the impression that those who commit offences punishable under the law can escape liability for such criminal acts if it is found that such acts were committed by them at the instance of their masters or guardians. The Magistrate has not also understood the nature of the offence alleged against the accused.
From the complaint and the sworn statement of the complainant it is clear that the case against the accused was one of theft, the act of trespass being alleged as an act leading up to the principal offence of theft. All the same the Magistrate seems to have understood the complaint to be one of simple trespass only. Such patent errors are not likely to be committed if persons with law degree qualification and with some experience at least in the handling of criminal cases are alone selected for appointment as Magistrates. This is a matter which has to be seriously considered by the appointing authorities.
4. We therefore accept the reference and set aside the order passed by the Sub-Divisional Magistrate acquitting accused 2 to 4. He is directed to proceed with the case against all the four accused in accordance with the procedure prescribed by 8s. 244 and 245 of the Code of Criminal Procedure.