L.N. Chhangani, J.
1. This is an appeal by the State against the order of the First Class Magistrate, Tonk dated 17th March, 1964 acquitting the respondent Mukhtiar Singh of an offence under Section 279, Indian Penal Code.
2. The facts leading to the appeal are briefly these-
On 7th October, 1963 one Mohammed Ilias was carrying his chassis RJR 2647 with a body on the wheels tied to the chassis from Jaipur to Tonk. At about 9 P. M. near village Motuka he noticed certain defects in the vehicle and, therefore, stopped it OR the left side of the road to discover the defect. In the meantime truck No. RJL 7307 driven by the respondent Mukhtiar Singh came from the side of Tonk. Mukhtiar Singh stopped the truck in front of Mohammed Ilias's chassis on the wrong side. One Narainsingh came out from the said truck and demanded a 'biri' from the complainant Mohammad Ilias who was removing the defect of his chassis. He supplied the 'biri' to him.
Theieafter the accused started his truck and wanted to pass the complainant's vehicle from the wrong side. The complainant warned him that if the truck was taken from that side it would strike the chassis. The accused respondent turned a deaf ear and drove away his truck with speed. The truck struck the chassis and caused some damage. Mohammed Ilias lodged information at the Police Station, Baroni on the same day at 9-30 P. M. A case under Section 279, Indian Penal Code, was registered and after investigation the accused was challaned in the Court of Magistrate First Class, Tonk.
The accused appeared in the Court of the Magistrate and the case was initially fixed on 7-2-1964 for arguments whether a charge should or should not be framed. It may be mentioned here that the case being triable as a summons case the mention in the proceedings of 31-1-1964 of the case having been fixed for arguments with regard to charge appears to be due to an error. The case came up before the Magistrate on 7-2-1964 and the Prosecuting Sub-Inspector supplied the necessary copies to the accused and the case was fixed for 17-3-1981 for statement of the accused. On 17-3-1964 the statement of the accused was recorded and thereafter the Migistrate wrote an order acquitting the accused-respondent.
3. In this appeal, it has been contended by the State that the Magistrate had acted illegally in recording an order of acquittal without recording the evidence of the parties.
4. I have heard Mr. Calla for the State. The accused-respondent has not cared to appear. At the out-set it may be mentioned that the examination of the accused on 17,3 1964 was merely in the nature of recording the plea of the accused under Section 242 of the Code of Criminal Procedure. No prosecution evidence was recorded till then and there could be no question, therefore, of an examination of the accused-respondent under Section 342, Criminal P. C , to enable him to explain the evidence and circumstances appearing against him. Under Section 242, Criminal P. C., the Magistrate, on the appearance of the accused, is required to explain the particulars of the offence to the accused and is required to ask him if he has any cause to show why he should not be convicted. Of course the Magistrate need not frame a formal charge. The examination of the accused must in the circumstances be treated as in the nature of recording plea under Section 242, Criminal P. C. The accused-respondent did not plead guilty and claimed a trial. This being so, on a proper consideration of the procedure prescribed for the trial of summons eases the Magistrate had no jurisdiction to record an order of acquittal. Under Section 243, Criminal P. C., the Magistrate could in the exercise of discretion record conviction on a plea of guilty although he is not bound to do so, In case the accused does not admit his guilt or the Magistrate does not choose to record conviction on such plea the Magistrate has to adopt the procedure laid down to Section 244. The Magistrate must under Section 244, Criminal P C., proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution. He is also required to hear the accused and take all such evidence as he produces in [defence. It is only after going through the procedure prescribed under Section 244 that the Magistrate can record an order of acquittal under Section 245, Criminal
The directions contained in Section 244, Criminal P. C., are mandatory and without complying with the directions contained in Section 244 the Magistrate had no jurisdiction to deal with the case under Section 245, Criminal P. C., and to pass an order acquitting the accused. Such an order is in clear violation of the express provisions contained in Sections 244 and 245, Criminal P. C., and is not sustainable in law. Of course, the Magistrate can record acquittal under Sections 247 and 248, Criminal P. C., even without recording evidence in certain exceptional circumstances but they were not invoked and could not be invoked in the present case. There have been a number of cases where the practice of recording orders of acquittal has been condemned. Reference may be made to Emperor v. Varadarajulu Naidu AIR 1932 Mad 25 (2); K. K. Subbier v. Lakshmana Iyer AIR 1942 Mad 452 (1) ; Kadutha Kadutha v. Kunjupanicken Kesaven AIR 1954 Trav. Co 439 and Radhanath Ma]i v. Kishorilal Banerjee : AIR1958Cal194 .
5. The Magistrate in the present case has acted in complete disregard of the procedure adopted for the trial of summons case and the order of acquittal is wholly illegal and cannot be sustained in law. It was the duty of the Magistrate to give the prosecution an opportunity to lead evidence to substantiate its case and thereafter to- hear the accused and to record the defence evidence if the accused chose to lead. In the circumstances, the order of acquittal cannot be maintained.
6. The appeal is accepted, the order of the Magistrate is set aside and the case is sent back to the magistrate for trial in accordance with the law.