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Sankaran Unni Vasudevan Unni Vs. Rasheed and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1980CriLJ304
AppellantSankaran Unni Vasudevan Unni
RespondentRasheed and anr.
Cases ReferredState v. C.K. Joseph
Excerpt:
- - the learned advocate appearing for the respondents submitted that there has been no violation of section 264 of the new code, and that in a summary trial the magistrate is not bound to write a detailed judgment, 2. the counsel for the appellant applied for a certified copy of the judgment of the trial court and what was granted to him as judgment has now been produced in this court being not satisfied with what was granted, when the appellant again applied before the trial court, he was told that that was the only record in the case and his application was rejected. 7. in the instant case no judgment as contemplated under section 264 has been recorded and the provisions therein have been clearly violated......the case ends in conviction or acquittal, in a case where the accused does not plead guilty, the trial magistrate is bound to record the substance of the evidence and a judgment containing a brief statement of reasons for the finding. it is clear from the above that a statutory obligation is cast on the magistrate under section 264 of the new code in cases where the accused does not plead guilty, to record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. the substance of evidence should be recorded in such a manner that a higher court may be in a position to decide that there were sufficient materials before the trial court to support its finding. without referring to the evidence, it is difficult to give a brief statement of.....
Judgment:

S.K. Kader, J.

1. The appellant challenges an order of acquittal passed in S. T. No. 720 of 1976 instituted on a complaint filed by him and tried summarily by the Judicial Magistrate of 1st Class, Karunagappally. The attack against the order of acquittal is on the ground that no judgment at all has been recorded by the trial court in 'the case and the mandatory provisions in Section 264 of the Code of Criminal Procedure, 1973, hereinafter called the new Code, have been flagrantly violated. The learned advocate appearing for the respondents submitted that there has been no violation of Section 264 of the new Code, and that in a summary trial the Magistrate is not bound to write a detailed judgment,

2. The counsel for the appellant applied for a certified copy of the judgment of the trial court and what was granted to him as judgment has now been produced in this Court Being not satisfied with what was granted, when the appellant again applied before the trial court, he was told that that was the only record in the case and his application was rejected. This is a case in which the accused did not plead guilty and keenly contested it. A number of witnesses were said to have been examined and cross-examined.

3. It is true that in a summary trial the Presiding Officer is not bound to write a detailed judgment or a judgment in accordance with Section 364 of the new Code and that it is enough if he gives a brief statement of the reasons for his finding. But that does not mean that the Presiding Officer can dispose of the case by a one line order or judgment,

4. Chapter XXI of the new Code deals with summary trials and Sections 260 - 265 appearing thereunder relate to the procedure in summary trial. The scope of Section 260 of the new Code has now been widened by including offences punishable with imprisonment up to two years and thereby bringing more offences within its ambit, Except those cases enumerated in Clauses (ii) to (ix) in Section 260 of the new Code and subject to the limitations prescribed therein, no offence punishable with imprisonment for a term exceeding two years can be tried summarily. Increasingly therefore, more cases are now being tried summarily. In order to save time, the regular trial is abridged and there are also certain limitations and restrictions imposed on the trial. A person affected is under a handicap in challenging the correctness of the finding; as the legislature has provided only a minimum protection for the person affected by the final order in a summary trial. Therefore it is absolutely necessary that the Magistrate should strictly observe the formalities required under the relevant provisions in Chapter XXI of the -new Code,

5. Substantial changes have been introduced in Sections 263, 264 of the new Code. Under Section 263 of the Code of Criminal Procedure, 1898, which will hereinafter be referred to as the old Code, the Magistrate or Bench of Magistrates need not record evidence of witnesses or frame a formal charge, in cases where no appeal lies; while under Section 264 of the same Code, in a case where an appeal lies, the Magistrate or Bench of Magistrates 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. There was therfore no necessity under the old Code to record or write a judgment or order giving reasons in a case where no appeal lay. But under Sections 263 and 264 of the new Code, there is no such distinction. Irrespective of the fact whether an appeal lies or not or whether the case ends in conviction or acquittal, in a case where the accused does not plead guilty, the trial Magistrate is bound to record the substance of the evidence and a judgment containing a brief statement of reasons for the finding. It is clear from the above that a statutory obligation is cast on the Magistrate under Section 264 of the new Code in cases where the accused does not plead guilty, to record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. The substance of evidence should be recorded in such a manner that a higher court may be in a position to decide that there were sufficient materials before the trial court to support its finding. Without referring to the evidence, it is difficult to give a brief statement of reasons, as reasons must be based on evidence,

6. Under Section 263 of the new Code a Magistrate shall, in every case tried summarily, enter in the form as the State Government may direct, the particulars mentioned in (a) to (j) in the section. What has been granted to the appellant as judgment by the trial court is only the record maintained by the magistrate under Section 263. Under Section 264, in every case tried summarily in which the accused does not, plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. This judgment is in addition to the record that has to be maintained under Section 263 and that the record maintained under Section 263 and the judgment under Section 264 are distinct and separate is clear from Section 265 which states that every such record and judgment shall be written in the language of the court.

7. In the instant case no Judgment as contemplated under Section 264 has been recorded and the provisions therein have been clearly violated. This is not an error or defect that can be cured under Section 465 of the new Code. The counsel for the respondent argued that in the column relating to the finding (h) the learned Magistrate has given some reason for the acquittal, This cannot be treated as a sufficient compliance of the mandatory provisions in Section 264 of the new Code and this is not what is contemplated as judgment under that section,

8. Even in those cases under Sections 263 and 264 of the Old Code, where there was no necessity to record a judgment or other order giving reasons, a Division Bench of this Court in State v. C.K. Joseph : AIR1959Ker10 observed that although it is not illegal for a Magistrate to pass an order of acquittal at a summary trial without giving reasons therefor, he ought, as a matter of practice, to write a short judgment, giving the reasons at least in cases falling under Section 264 of that Code. Although the Magistrate is not bound to write a detailed judgment in a summary trial; in view of the substantial changes brought out in Sections 263 and 264 of the new Code and the fact that the judgment is almost the sole record to be looked into and the reasons for the decision are to be gathered from it, the judgment contemplated under Section 264 of the new Code! should be such as to enable a court of appeal or revision to know from its perusal, the nature of the case, the substance of the evidence and the reasons for the finding so that such Courts might be in a position to examine the correctness or propriety or illegality of such finding.

9. It follows from the above, that the order of acquittal has to be interfered with and in the circumstances of the case, .it cannot be said that there has not been any miscarriage of justice.

In the result this appeal is allowed, the order of acquittal is set aside and the case is sent back to the court below for writing a judgment in accordance with the provisions of Section 264 of the new Code, if necessary, after hearing the parties. The case being an old one will be disposed of within two weeks of the receipt of records by that court.


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