L.N. Chhangani, J.
1. This is a reference by the Additional Sessions Judge, Tonk, recommending that conviction and sentence of the accused applicant Onkar and Bajrang under Section 426, Indian Penal Code, may be set aside and the case may be remanded to the trial court for fresh trial in accordance with law.
2. The facts leading to the reference may be briefly stated as follows:--
On 21st April, 1962 Kapoorchand-opposite party No. 1 presented a complaint in the court of First Class Magistrate, Tonk, against the petitioners Onkar and Bajranga accusing them for an offence under Section 427, Indian Penal Code. The allegations in the complaint are that the opposite party is the manager of a 'dharmshala' constructed by his father Seth Chhaganlal and that there was a lime kiln in the dharmshala. On 17th April, 1962 the accused petitioners destroyed the kiln and caused a damage to the extent of Rs. 200
On 1st May, 1962 the Magistrate recorded the statement of the complainant and further examined two witnesses Ramkaran and Chatra and ordered that the complaint be taken on file for an offence under Section 426, Indian Penal Code. Processes were issued to the accused-petitioners for answering a charge under Section 426, Indian Penal Code. An offence under Section 426, Indian Penal Code, was triable as a summons case. The Magistrate acting under Section 242, Criminal P. C. stated to the accused particulars of the offence of which they were accused and asked them whether they had any cause to show why they should not be convicted. The accused pleaded not guilty. The Magistrate held a trial in accordance with the procedure prescribed for a summons case, examined the prosecution evidence, recorded the statements of the accused and examined the witnesses produced by the accused and eventually convicted them of an offence under Section 426 Indian Penal Code and sentenced each one of the petitioners to a fine of Rs. 40, and in default, one month's simple imprisonment.
The petitioners submitted a revision in the court of Additional Sessions Judge, Tonk. Before the Additional Sessions Judge the accused-petitioners contended that the complainant had filed a complaint under Section 427, Indian Penal Code, and that the complainant's sworn statement and the statements of witnesses examined under Section 202, Criminal P. C. also supported the complaint and did not indicate the commission of a mionr offence under Section 426, Indian Penal Code and, consequently, the Magistrate acted without jurisdiction in registering a case under Section 426, Indian Penal Code, and holding a trial in accordance with the procedure prescribed for summons case. The additional Sessions Judge accepted the plea of the accused-petitioners and has made the present reference.
3. Mr. Bhandari appeared for the accused-petitioners and supported the reference. Mr. Sobhag Mal Jain for the complainant and Mr. A.R. Mehta for the State have opposed the reference.
4. The learned Deputy Government Advocate while opposing the reference contended that the Magistrate having taken the case on file under Section 426, Indian Penal Code, and having initiated enquiry for an offence under that section, the Magistrate acted properly in holding the trial in accordance with the summons case procedure. According to him, there has been no mis-trial in the case.
5. Mr. Sobhog Mal for the complainant supplementing the arguments of the Deputy Government Advocate contended that even if the offence be held to be triable as a warrant case, yet the trial of the offence in accordance with the procedure prescribed for summons case was a mere irregularity and did not vitiate the trial in the absence of any actual prejudice to the accused-petitioners. In support of this submission, he relied upon Prem Das v. State, AIR 1961 All 590 (FB) and Mohan Lal Nand Lal Sharma v. State, AIR 1962 Guj 231. He further contended that the accused-petitioners having submitted to the trial for an offence under Section 426, Indian Penal Code, have suffered no prejudice whatsoever and, therefore, there is no case for folding trial as vitiated.
6. On the arguments made at the Bar, two questions call for determination in this case:
1. Whether the offence for which the accused-petitioners were tried by the Magistrate was triable as a sumons case?
2. The other point requiring determination on an assumption that the offence for which the petitioners were tried is a warrant case offence whether the trial of a warrant case offence in accordance with the procedure prescribed for a summons case offence is an illegality vitiating the trial or is a mere irregularity which can vitiate a trial only on proof of prejudice to the accused?
7. Taking up the first question, it will be proper to notice the cases relied upon by the Additional Sessions Judge and the cases cited by Mr. Bhandari for the accused-petitioners. The Additional Sessions Judge has relied upon three cases, namely, Emperor v. Chinnapayan, ILR 29 Mad 372; Gayaprasad v. Emperor, AIR 1932 Nag 111 and Sufal Golai v. Emperor, AIR 1938 Cal 205. The learned Additional Sessions Judge also stated principles laid down in Arunachala Reddy v. Sellamuthu Goundan, Alia 1942 Mad 594 although this case has not been cited in his judgment.
8. The first case to be noticed is ILR 29 Mad 372. In this case the Magistrate tried a warrant case as a summons case. The Magistrate stated particulars of the offence to the accused and on his pleading guilty, he convicted the accused. On appeal, the Madras High Court noticing that the accused was convicted on admission of guilt, without taking any evidence and without framing a formal charge, observed that that was something more than an irregularity and that the accused might possibly have been prejudiced by the procedure adopted by the Magistrate. This case may have some bearing on the second question but is of little assistance in answering the first question posed above. The decision in the case obviously rested upon the possibility of prejudice to the accused.
9. In AIR 1932 Nag 111 the accused was prosecuted for an offence under Section 34(b) read with Section 45 of the Central Provinces Excise Act. It was the prosecution case that the accused committed an offence under Section 34(b) and that the offence being the second one, he was liable to enhanced punishment under Section 45 of the Central Provinces Excise Act. Enhanced punishment under Section 45 Central Provinces Excise Act made the offence triable as a warrant case offence. The accused was tried in accordance with the procedure for summons case and was convicted. The controversy before the Nagpur Judicial Commissioner's Court was whether Section 45 of the Central Provinces Excise Act which provided for an enhanced punishment, had the effect of making a second offence under the Act triable as a warrant case offence. The District Magistrate had expressed the opinion that Section 45 of the Central Provinces Excise Act did not create a new offence but only empowered the court to impose heavier punishment.
This view was disapproved by the Additional Judicial Commissioner and it was held that the offence was triable as a warrant case offence. It was further observed by the learned Judge that a certified copy of entry in the register of criminal case relating to accused's previous conviction had been filed along with challan and that he was definitely prosecuted for the second offence. It may also be mentioned that in that case the counsel for the accused had prayed for permission to cross examine the witnesses but the request was rejected on the ground that it being a summons trial the accused was not legally entitled to ask for the production of witnesses for cross examination over again.
This again is an instance of an offence triable as a warrant case having been tried in accordance with the procedure of the summons case and where the accused suffered an obvious prejudice on account of the denial of an opportunity of cross examination the accused cannot derive help from this case.
10. The facts of AIR 1938 Cal 205 are similar to the facts of the Nagpur Case, AIR 1932 Nag 111 and need not be noticed in detail.
11. A case in point is the case reported in AIR 1942 Mad 594. The learned Judge summarised the position in this case as follows:
'It is open to a Magistrate, who entertains a complaint and records a sworn statement to come to the conclusion that although the complaint allegations constitute an offence triable under the warrant procedure yet in fact a minor offence was committed, that he may adopt a summons procedure if the offence appears to be one to which the summons procedure could be applied, and that he may proceed with the case as if the complaint was one of the minor charge only.'
The above principle has also been relied upon by the Additional Sessions Judge. Considering the facts of the case, the learned Judge, however, made the following observations:
'It does not however appear from the order passed by the Magistrate that he disbelieved any part of the complainant's story. In fact, he was not in a position to judge the extent of damage caused, and the only distinction between an offence punishable under Section 426, Penal Code and one punishable under Section 427, Penal Code, is the extent of the damage done. It would therefore appear that the Magistrate in issuing processes and mentioning Section 426, Penal Code, acted under a misapprehension and overlooked the facts that if the extent of the damage was greater than Rs. 50 the offence would be one punishable under Section 427, Penal Code and that a warrant procedure would have to be adopted.'
Further, inasmuch as the accused-appellant in that case was acquitted under Section 247, Criminal P. C. on account of the absence of the complainant, the learned Judge concluded that the Magistrate acted without jurisdiction in acquitting the accused. The learned Judge, however, did not direct a retrial in the facts of that case.
12. The principle laid down in this case does not debar a Magistrate while dealing with a complaint for an offence triable as a warrant case to take cognizance only of a minor offence triable as a summons case and to adopt the summons case procedure. In the peculiar facts of the case, the learned Judge held that the Magistrate did not apply his mind to the nature of the offence committed and acted under a misapprehension and recorded an order of acquittal which was not valid in law. The decision of the case, I must observe, turned upon the facts of that case. It may be pointed out that in that case the Magistrate had not commenceed the enquiry at all and had dismissed the complaint before recording the plea of the accused under Section 247 Criminal P. C.
In the present case the Magistrate not only took the case on file under Section 426 and issued processes to the accused to answer the charge under Section 426 but he also proceeded to hold an enquiry into the offence treating the offence as one under Section 426, Indian Penal Code. It is true that the Magistrate had not cared to look at the provisions of Sections 426 and 427 Indian Penal Code while commencing the trial. Even while stating the particulars of the offence the Magistrate referred to the damage to the extent of Rs. 200 alleged to have been caused to the complainant. The manner in which the particulars of the offence were stated to the accused, I must say was far from satisfactory, yet there can be difficulty in arriving at a conclusion that he commenced the trial for an offence under Section 426 Indian Penal Code. There is thus a fundamental difference in the facts of the case AIR 1942 Mad 594 and the facts of the present case inasmuch as in the present case a trial for an offence under Section 426 Indian Penal Code was commenced and concluded. The decision in AIR 1942 Mad 594 is, therefore, distinguishable on facts.
13. The question whether a particular case was properly tried as a summons case should not be decided in an abstract or general manner. In arriving at a proper decision in such a case the Court should consider the following factors:
1. The allegations in the complaint and the offence prima facie disclosed by them;
2. The extent to which the Magistrate accepted the allegations in the complaint as primalfacie correct;
3. The nature of the offence for which the accused was summoned to answer, and lastly;
4. The offence for which the enquiry or trial was commenced.
The eventual decision should be arrived at having due regard to the facts and circumstances of the individual cases and the factors enumerated above. Now, having regard to the facts and the circumstances of the case the proper conclusion to arrive at is that the Magistrate purported to hold and held a trial into an offence under Section 426, Indian Penal Code and that the offence was triable as a summons case. The accused-petitioners also raised no controversy as to the nature of the offence for which they were tried. They joined in the trial. In these circumstances, I cannot accept the contention that the accused were tried for an offence under Section 427 Indian Penal Code, and that the procedure of the summons case was wrongly applied in the present case. In this view, I derive some support from the observations made in Ma Paw v. Emperor, AIR 1931 Rang 12. In that case the accused laid an information to the police charging a person with robbery and that information was turned out as false. Subsequently, the accused filed a complaint making the same allegation and the Magistrate on police report threw out the report under Section 203, Criminal P. C. The police filed a complaint against the accused under Section 182, Indian Penal Code and the accused was found guilty and convicted. It was contended that as the accused had committed an offence under Section 211 and that as the prosecution for an offence under Section 211 could be instituted only on a complaint of a Magistrate, conviction of the accused under Section 182 was illegal. Maintaining the conviction, the learned Judge observed as follows:
'It is true that the two complaints, both false in the same particulars, may be regarded as go closely connected that independent prosecutions and convictions for two offences are undesirable and in the ordinary way if a prosecution takes place it should be for the more serious of the two offences committed. This may no doubt be a good ground for quashing proceedings under the minor section in their early stages; but when there has been no prosecution for the more serious offence and a person has been prosecuted and convicted for the minor offence and the whole case is complete, we see no reason for holding that the conviction is illegal and must be set aside.'
The principle of course has been laid down in a different context but can be easily extended to the facts of the present case and the validity of the trial cannot be successfully challenged.
14. There is one more consideration which has also persuaded me to arrive at the above conclusion. Section 242, Criminal P. C. provides for commencement of a summons case trial. At the outset, the particulars of the offence are to be stated to the accused. This is equivalent to the framing of a charge under the warrant case procedure. The words in the section that 'it shall not be necessary to frame a formal charge' point out in this direction. The recording of a plea of an accused under Section 242, Criminal P. C. with reference to a particular offence can be equated with the framing of a charge under that section under the warrant case procedure.
Now, if a person is accused of a serious offence, say Section 302 or Section 304 or Section 307 and a Magistrate holding an enquiry inadvertently frames a charge only under Section 325 and after trial convicts a person for that offence, can a conviction be set aside in appeal on a plea of the accused that the Magistrate acted under a misapprehension in omitting to frame charge for the higher offence and to commit the accused for trial to the court of session and in convicting him for an offence under Section 325 Indian Penal Code? Before the amendment of the Act in 1955 he could have emphasised the advantage of sessions trial with jury or with the aid of assessors. The answer to this question, in my Opinion, should be in the negative and on the game analogy after the commencement of the trial for a minor offence under a summons case procedure the accused should not be permitted to challenge the validity of the trial on the ground that the trial should have been for a major offence triable as a warrant case. Looked at from this angle also the manner of the commencement of the trial and the offence for which the trial is actually held are of substantial importance and ordinarily it should not be permissible to go behind them and to hold that that trial is bad because 'it should have been for a major offence triable as a warrant case'. I, therefore, answer the first question in the affirmative and hold that there has been no defect in the trial which may vitiate it. On this decision of the first question, it is unnecessary to examine the second question posed above.
15. In the result, I am unable to accept the reference. The reference is rejected. The Additional Sessions Judge will now proceed to dispose of the revision on merits in accordance with law.