1. The petitioner in this case has been prosecuted by the Police on a charge sheet in which it is alleged that he had interfered with a certain Station Master in the exercise of his duty and in the course of that interference had slapped him on his cheek. The charge sheet specifically referred to his offence as falling simply within Section 121 of the Railways Act, IX of 1890, the maximum punishment for which is a fine of Rs. 100. The Second Class Magistrate of Thiruvadamarudur on receiving this charge sheet took cognisance of the case as involving an offence under that section of the Railways Act and as he was bound to do he proceeded with the trial of the case under the procedure laid down for the trial of the summons cases. After he had taken the evidence of the prosecution in full, it occurred to him that that evidence also established an offence under Section 323, Indian Penal Code, for which offence the maximum punishment awardable is imprisonment for one year. The trial for an offence under Section 323, must be held according to the procedure laid down for the trial of warrant cases and what the Magistrate did was to convert the proceedings before him for a summons case into a warrant case and to frame a charge against the petitioner for both an offence under Section 393, Indian Penal Code and an offence under Section 121 of the Railways Act.
2. It is argued in support of this petition that this procedure is illegal, that there is no provision in the Code which can justify it and that once a Magistrate has taken cognizance of an offence which is triable only according to the procedure applicable to summons cases, he can in no circumstances proceed against an accused person for a more serious type of offence to be dealt with only under warrant cases. In support of this argument I have been referred to Section 246 of the Criminal Procedure Code. That section runs as follows:
A Magistrate may under Section 243, or 255, convict an accused of any offence triable under this chapter which from the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons.
3. 'Triable under this chapter' means of course any offence triable under the procedure laid down for the trial of summons cases and although this Section 246, does not contain any explicit prohibition of the procedure now complained against, it is quite obvious that such prohibition is implied in it and that once a Magistrate has taken cognisance of a summons case, he cannot convict an accused person for anything but an offence triable as a summons case. No doubt the Magistrate, might, had he felt so inclined, have scrutinised the charge sheet when he first received it, and have come to the conclusion that an offence under Section 323, was therein disclosed. He could then have commenced the whole proceedings according to the procedure laid down for warrant cases; but not having done that, it seems to me that under Section 246, he is precluded from convicting the present petitioner for any offence under Section 323 and, therefore, of course precluded from framing any charge of an offence under that section against him.
4. It has also been pointed out that under Section 190, Criminal Procedure Code, it is not upon a report in writing made by a Police Officer but upon the knowledge of the Magistrate himself gained by the evidence to which he has listened that the Magistrate has come to the conclusion that an offence under Section 323, may have been committed and that if the Magistrate takes cognisance of such an offence under Section 190(c), it is his bounden duty to afford the accused person an opportunity of saying whether he wishes to be tried or not to be tried by that Magistrate. This procedure also has not been followed in the present case.
5. On these grounds this petition will be allowed and the order of the Magistrate complained against will be set aside. The case will be sent back to the Magistrate who should proceed, to dispose of it according to law on the understanding that the only offence with which he is concerned is the offence under Section 121 of the Railways Act.