M.P. Thakkar, J.
1. The State has preferred this appeal against the order of acquittal passed by the learned City Magistrate. 3rd Court, Ahmedabad, on July 26, 1968. The respondent was tried for offences Under Sections 279 and 338 of the Indian Penal Code and for offences Under Sections 112 and 116 of the Motor Vehicles Act. The learned Magistrate came to the conclusion that it was not proved beyond reasonable doubt that the respondent was the driver of the vehicle which caused the injuries to the victim of the accident. In this view of the matter, he acquitted the respondent.
2. It is not necessary to examine the evidence in this matter with a view to ascertain whether the assessment' of the evidence made by the learned Magistrate is correct. The order passed by the learned Magistrate cannot be sustained by reason of a fundamental defect in the procedure followed by him. It appears that originally no charge Under Section 338 of the Indian Penal Code was levelled. In the course of the trial, the investigating officer realised that Hemendrakumar, the victim of the accident, had sustained a compound fracture which came within the definition of 'grievous hurt' embodied in Section 338 of the Indian Penal Code. Thereupon a harge Under Section 338 was framed, against the respondent. Now Section 338 is punishable with a sentence of two years. By the time the charge Under Section 338 was framed, a number of witnesses had already been examined. Till this stage the trial was held in a summary way under Chapter XXII of the Code of Criminal Procedure as none of the charges originally indicated related to an offence punishable with more than six months' sentence. As the charge Under Section 338 was framed in the midst of the trial, the question arose as regards the legality of the trial in a summary way so far. It is obvious that having regard to Section 260 (1) (a) of the Code of Criminal Procedure, no trial relating to an offence which is punishable with a term exceeding six months can be held in a summary way. The learned Magistrate realised this. He, however, thought that the proper course t( adopt was to afford to the defence an opportunity to recall the witnesses who had been already examined and make them available for cross-examination by the defence. He afforded such an opportunity to the defence. The defence did not apply for the witnesses being recalled for- cross-examination and the trial proceeded from that point onwards as a regular trial. Now, the course ad opted by the learned Magistrate is patently illegal and one which is not permissible under law. If a trial is required to be held in a regular manner (and not in the summary way under Chapter XXII), the trial must from its inception be conducted in the regular manner. It is not permissible to hold a part of the trial in the summary way and to continue the rest of the trial in a regular manner. The illegality cannot be cured by affording the defence an opportunity to recall the witnesses for cross-examination. This position will become clear on a perusal of Sub-section (2) of Section 260 of the Code which is in the following terms:
When in the course of a summary trial it appears to the Magistrate oi Bench that the case is one which is of a character which renders it undesirable that it should be tried summarily, the Magistrate or Bench shall recall any witnesses who may have been examinee} and proceed to rehear the case in manner provided by this Code.
Even if a case can be tried in the summary way and if the learned Magistrate feels that having regard to the nature of the matter, it is desirable that it should be tried in the regular manner, he is required to hold a fresh trial and rehear the case in the manner provided by the Code. When even a case which can be tried in a summary way has to be reheard and a de novo trial has to be held if the mode of trial is sought to be altered midstream where the offence is such which cannot be tried' in a summary way at all, there is no room for the argument that a re-hearing of the case is not essential. The trial in the summary way from inception is bad and is vitiated if the offence is one which i? punishable with a sentence exceeding six months which cannot be tried in a summary way. There is no doubt, therefore, that the trial is vitiated from its inception in the facts and circumstances of the present case. The order of acquittal cannot under the circumstances therefore, be sustained.
3. The appeal is, therefore, allowed. The order of acquittal is set aside. In exercise of power Under Section 423 (1) (a) of the Criminal P.C. it is directed that the respondent-accused be retried by a Magistrate other than the learned Magistrate who acquitted the respondent. Order accordingly.