1. This is an application to revise the order of the Sub-divisional Magistrate of Saidapet confirming the conviction of the petitioner under Section 352 of the Indian Penal Code.
2. Mr. Narasimhachariar for the petitioner contends that the lower appellate Court was not justified in looking into the complaint and the sworn statement of P.W. 1 in weighing the evidence. His argument is that under Section 264 of the Criminal Procedure Code the only record in the case is the judgment which embodies the substance of the evidence in the case and the appellate Court cannot go beyond the record, and the complaint and the sworn statement are outside the record of the case. The argument no doubt would sound strange but for the fact that the terms of the section are such as to support the contention. Section 264 is in these terms:
(1) In every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall, before passing sentence, record a judgment embodying the substance of the evidence and also the particulars mentioned in Section 263.
(2) Such judgment shall be the only record in cases coming within this section.
3. In cases in which an appeal lies the Bench or Magistrate trying the case summarily is required to record a judgment embodying the substance of the evidence and also the particulars mentioned in Section 263, such as serial number, date of the commission of the offence, date of the report or complaint, name of the complainant, plea of the accused, etc. The record of a case tried under Section 264 could only be the judgment embodying the substance of the evidence and other particulars mentioned in Section 263. That being so, the question is whether the lower appellate Court was justified in referring to the complaint and sworn statement in hearing the appeal.
4. The question really is whether the terms of the section should be understood in the literal sense or whether they should be understood as meaning that the record made by the Court should only be the judgment in the case. It is contended by the learned Public Prosecutor that material objects and documentary evidence filed in the case can be looked into by the appellate Court and not merely the judgment. Even the substance of documentary evidence, like the oral evidence, has to be embodied in the judgment according to Section 264. That being so, medical certificates and documents of title produced by the accused to support the case of bona fide assertion or defence of possession cannot be looked into as their substance is required to be embodied in the judgment. When the terms of the section clearly say that such judgment shall be the only record in cases coming within this section, I do not think the Court will be justified in giving them an interpretation which the Court may consider reasonable in order to enable the appellate Court to try an appeal properly. If the Bench or Magistrate trying the case summarily does not correctly embody the substance of the evidence, there is no remedy for such defect or even a mistake. The legislature for reasons best known to itself has laid down that in the case of summary trials the judgment with certain particulars shall be the record and the appellate Court is not justified in travelling outside the record in hearing an appeal from the conviction in a summary trial. Though this particular point under consideration is not covered by authority, yet there are a number of cases in which it was held that the record of the case was the judgment. In Nagoor Kanni Nadura v. Sithu Naick (1926) 52 M.L.J. 32 Jackson, J., held that the judgment was the only record in cases coming under Section 264. In The Crozvn v. Salig Ram ILR (1926) Lah 303 it was held that in a summary trial, whether appealable or non-appealable, no formal charge in writing need be framed, and the reasoning was that as the judgment was the only record in the case it was unnecessary that a formal charge should be framed. In Madhab Chmdra Saha v. Emperor ILR (1926) C. 738 it was similarly held that no formal charge need be framed in a case tried under Section 264 as the only record thereunder was the judgment containing the particulars set out in Section 263. Considering the clear terms of the section and the fact that no charge need be framed in writing, I think the contention of Mr. Narasimhachariar ought to be upheld. I, therefore, hold that the lower appellate Court was not justified in looking into and relying upon the complaint and the sworn statement in trying the appeal.
5. I set aside the order of the Sub-divisional Magistrate and direct him to restore the appeal to file and dispose of it according to law.