V.R. Shah, J.
1. This reference arises out of the following circumstances.
2. The complainant in this case is the Chief Officer of the Bhavnagar Borough Municipality and he filed a complaint against one Kishorchandra Bhanushanker for having constructed a shed without permission of the Municipality and thus committed an offence punishable under Section 153 of the Gujarat Municipalities Act. The complaint was filed on 20-10-1966. The accused was given to understand that the case will be taken up on 8-11-1966. The Proceedings of the case show that on -11-1966, the plea of the accused was recorded and he pleaded not guilty to the charge. It appears that the case was adjourned for several times. Ultimately on 16-3-1967 the learned Magistrate recorded what purports to be a statement of the accused under Section 342 of the Criminal Procedure Code to the effect that the allegations are correct and that the accused has committed a mistake and he has construct ed the shed without permission. The trial Magistrate then convicted the accused for the offence punishable under Section 155 of the Gujarat Municipalities Act and fined him Rs. 20. The learned Magistrate recorded his reasons as follows:--
'The complainant has stated that accused has made permanent structure without permission. Accused has admitted that fact. I, therefore, convict him.'
The accused took the matter in revision to the Sessions Court at Bhavnagar and it was heard by the learned Additional Sessions Judge in that Court. Two points were taken before the learned Additional Sessions judge. The first was that the complaint has not been filed by the person authorised by law to file it and that contention was negatived by the learned Additional Sessions Judge and it was not pressed before me. The second contention was that the learned trial Magistrate should have followed the procedure prescribed in Section 244 of the Code of Criminal Procedure and since he has not done so, there has been no legal trial of the accused. That contention was accepted by the learned Additional Sessions Judge and he has, therefore, recommended to this Court that the conviction of the accused is illegal and that, therefore, a suitable order should be passed by this Court.
3. Mr. Nanavati, learned Assistant Govt. Pleader, having gone through the record or the case, conceded that he cannot support the order of the learned trial Magistrate.
4. The offence punishable under Section 155 of the Gujarat Municipalities Act Is punishable with fine only. It was, therefore, agreed before me that the trial of such a case is to be the trial to be followed in a summons case which is provided for in Chapter XX of the Code of Criminal Procedure. Section 242 provides that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted. Section 243 provides that if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. Then follows Section 244, which so far as material for our purposes reads as follows:--
'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.'
Section 342 of the Code of Criminal Procedure under which the learned trial Magistrate has purported to record the statement of the accused, so far as material for our purposes, reads as follows :--
'For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused put such question to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.'
5. Now, in this case, there is no doubt that when the accused appeared before him, the learned trial Magistrate read over the complaint to him and asked him whether ha has committed the offence. The accused replied to the learned Magistrate in the negative, meaning thereby that he has not committed the offence. Under Section 244 of the Code of Criminal Procedure, it became the duty of the learned Magistrate to proceed to hear the complainant and to take all such evidence as may be produced in support of the prosecution. It is only thereafter that he has to hear the accused and take all such evidence as the accused produces in his defence. The record of this case does not show that the Magistrate heard the complainant or that he took such evidence as was produced in support of the prosecution. In fact, there does not appear any examination of the complainant or the examination of any witness in support of the case of the prosecution. There are no documents also produced and proved in support of the case of the prosecution. Since no evidence has been offered in support of the prosecution, there was no occasion for the learned Magistrate to hear the accused and to take such evidence as the accused may produce in his defence. No Roznama is kept by the learned Magistrate in this case, but it appears from the various dates noted on the printed form of the Summary Register, that the case was adjourned about seven times between 8-11-1966 to 15-3-1967. Thereafter on 16-3-1967 the learned Magistrate recorded what he has stated to be a statement of the accused under Section 342 of the Code. Now, the power to put questions to the accused under Section 342 can be exercised by the Magistrate only for the purpose of enabling the accused to explain any circumstance appearing in the evidence against him. Therefore, before the learned Magistrate can act under Section 342 there must be evidence led by the prosecution on record and this evidence should be such as to prove circumstances which involve accused, directly or indirectly in the commission of crime. The learned Magistrate, therefore, in this case, had no authority to exercise his power under Section 342 and put any question, to the accused under that section. It was not proper for the learned Magistrate to put in the absence of any prosecution evidence, any question to the accused in order to obtain an admission of the commission of the offence from the accused, and thereafter to convict him on the basis of such a statement. Once the accused has denied the commission of the offence in his plea made under Section 243 of the Code, the Magistrate is in duty bound to proceed with the recording of the evidence of the complainant and his witnesses and so long as no evidence has been offered on behalf of the prosecution, it is not competent to him to turn to the accused and to put any questions to him under Section 342 of the Code. A statement obtained by the learned Magistrate by exercising the power which he is not competent to exercise, at the time when he did, is a statement which should be considered as non-existent on the record of the case, and such a statement cannot be used against the accused person. The only occasion on which the accused person can be convicted of an offence without recording any evidence for the prosecution arises when the accused in answer to the question put to him under Section 242 of the Code shows no sufficient reason as to why he should not be convicted. This would happen when the accused admits that he has committed the offence of which he is accused. In all other cases the Magistrate is bound to proceed under Section 244 of the Code and record prosecution evidence. It is not competent to the Magistrate to record further plea of the accused under Section 342 of the Code as a statement containing the plea of the accused under Section 243 of the Code. I have, therefore, no hesitation in coming to the conclusion that in this case the learned Magistrate has acted illegally and has departed from the mandatory procedure prescribed in Chapter XX of the Code. The departure from the procedure is so cross that a prejudice to the accused must e inferred. There is no doubt, therefore, that the conviction of the accused should be set aside.
6. The next question will be as to whether a retrial should be ordered. The allegation of the complainant is that the accused has constructed a shed. The learned Magistrate has fined him only Rs. 20. The accused has undergone the trouble and expenses of preferring a revision application in the Sessions Court and he has also undergone the trouble and expenses of appearing in this Court at the hearing of this reference. Taking all these factors into consideration, I am of the opinion that no retrial should be ordered.
7. In the result therefore, this referenceis accepted. The conviction of the accusedand the sentence awarded to him by thelearned trial Magistrate are set aside andhe is acquitted of the offence of which hewas convicted. Fine, if paid, should be refunded to him.