1. This reference has been made by the Sessions Judge, Central Saurashtra, recommending that the order of the First Class Magistrate, Rajkot (Mr. Upadhyay) convicting and sentencing the opponent under Sections 447 and 426, I.P.C. be set aside.
2. The case was tried summarily. The trial commenced before Mr. Garni but before he could complete it he was transferred. Mr. Upadhyay who succeeded him completed the trial. Mr. Garni had examined some of the prosecution witnesses and Mr. Upadhyay acted on Mr. Gami's notes of evidence as also on the notes made by him and convicted the opponent. It appears from the judgment of the learned Magistrate that the complainant and the opponent own adjoining houses. The complainant's roof was higher than the opponent and projected its eaves over it. The opponent raised her roof and the learned Magistrate found that she employed workmen to do the job under the supervision of her maternal uncle. The learned Magistrate further held that in the process of raising the roof the complainant's eaves were cut. The rain water from the complainant's roof could no longer be discharged because the opponent had raised the height of her roof and therefore she got her workmen to construct a drain on the complainant's wall by plastering mobhias (broad Indian tiles) on the complainant's wall to carry away rain water.
3. On these findings the learned Magistrate held that the opponent's workmen must be deemed to have committed the offences of mischief and Criminal trespass in cutting the com plainant's eaves and in entering upon his property for the purpose of constructing the drain. He held that as they carried out the work under her instructions, she must be held responsible for these offences. He therefore convicted her of the offences under Sections 426 and 447, I.P.C. The opponent was sentenced to pay a fine of Rs. 30/- in respect of each of the offences. She preferred an application to the Sessions Judge under Section 435, Criminal P.C., praying for a revision of the learned Magistrate's orders. The learned Sessions Judge held that the opponent could not be convicted as the principal offender as she did not personally enter upon the complainant's property or cut the eaves and she could not be convicted as an abettor also because the judgment did not contain a finding that she had asked her uncle or workmen to enter open the complainant's property with the intention which would make the entry a criminal trespass. Similarly, in cutting down the eaves, the learned Sessions Judge held that it was not proved that there was an intention to cause wrongful loss to the complainant. He has therefore recommended that the opponent's conviction and sentence should be set aside.
4. We are unable to agree with the learned Sessions Judge. In instructing her maternal uncle to raise the roof which necessitated the cutting of the opponent's (sic complainant's) eaves and entering upon his property she must be deemed to have intended to cause annoyance and wrongful loss to the complainant and therefore to have abetted the offences of criminal trespass and mischief. The learned Magistrate's judgment does contain a finding to that effect.
5. The learned Magistrate proceeded with the trial from the stage at which his predecessor Mr. Garni had left it and acted on the notes of the evidence recorded partly by Mr. Garni and partly by himself. The learned Sessions Judge seems to have thought that as the only record of the case under Section 264(2), Criminal P.C. was the judgment of the case and as even the appellate Court was precluded from, looking into the notes of the trying Magistrate, the learned Magistrate was not entitled to look into his predecessor's notes. We do not think so. Section 264 cannot prohibit a Magistrate from looking into his own notes when writing the judgment and we do not see why on a transfer of a Magistrate before he completes the trial his successor cannot make use of these notes under Section 350. Section 264 applies only where the case is dealt with by the appellate Court. The question whether a Magistrate should act upon the notes of evidence of his predecessor or should hold the trial de novo is a matter which is left under Section 350, Criminal P.C. to his discretion and in the absence of anything to show that the procedure adopted by the learned Magistrate has prejudiced the opponent, we are not prepared in revision to disturb his finding. In - Emperor v. Durgaprasad Chunilal , Gruer J. held that Section 350 does not in terms exclude summary trials from its operation. It applies to all inquiries or trials conducted by a Magistrate in which the whole or any part of the evidence has been heard and recorded. The question whether Section 350 would apply depends upon the way in which the evidence has been recorded.
6. We agree with this view. We find that Mr. Garni has made adequate notes upon which his successor could safely act. Under the circumstances we are not inclined to disturb the learned Magistrate's findings in revision. The opponent however could not be convicted as the principal offender but as an abettor only. Therefore, we reject the reference but alter the opponenent's conviction to one under Sections 447 and 426 read with Section 109, I.P.C.
Shah, C. J.
7. I agree.