N.K. Sen, J.
1. In this case the petitioner was convicted under Section 289 of the Indian Penal Code and sentenced to pay a fine of Rs. 200/-, in default, to six weeks rigorous imprisonment; and out of the fine, if realised, a sum of Rs. 50/- was ordered to be paid to P. W. 1 as compensation. Against this order of conviction and sentence the present Rule was issued.
2. In short the prosecution case was that the petitioner had a ferocious Alsatian doe which was allowed to roam on the street without any escort and that the dog had bit persons before the dog bit the complainant on the 17th Feburary 1956 at Deodar Street.
3. What the defence of the petitioner was does not appear from the judgment. But his plea shows that he did not admit the above offence. The case was tried summarily under Section 260 of the Code of Criminal Procedure. It appears from the summary sheet that six witnesses were examined on behalf of the prosecution and one for the defence.
4. The point taken before this Court is that the case which was a cognizable one was investigated under Chapter XIV of the Code of Criminal Procedure, and hence the petitioner was entitled, under Section 173 (4) of the Code, to a copy before the commencement of the trial, of the first information report recorded under Section 154 and all other relevant documents or extracts thereof on which the prosecution proposed to rely, including the statements and confessions, if any, under Section 164 and the statements recorded under Section 161 (3) of the Code of Criminal Procedure of all the persons whom the prosecution proposed to examine as its witness. As no copy of those statements had beep supplied to him, this non-compliance of the mandatory provisions of the Code deprived the petitioner of the opportunity of confronting the witnesses. It was stated that as only a copy of the chalan was supplied to him, be had reasonable ground for thinking that the investigating officer had not recorded in writing any statement of any witness.
5. A further grievance has been made that on the 26th July 1956 four witnesses were examined and cross-examined on behalf of the prosecution and on the 27th July 1956 two more prosecution witnesses were examined and cross-examined and On the 25th August 1956 a defence witness was examined. The learned Magistrate made no memo of evidence of any of the witnesses, and indeed the record contains no memo of evidence. It was, therefore, contended that inasmuch as the evidence of the investigating officer disclosed that he had recorded the statement of all the prosecution witnesses in extenso under Section 161 of the Code of Criminal Procedure, the failure to supply the petitioner with copies thereof has vitiated the entire trial. It is further contended that although under Section 263 of the Code of Criminal Procedure it is not incumbent on the Magistrate to record in non-appealable cases the evidence or a memo thereof, the failure to keep a memo of evidence has seriously prejudiced the petitioner.
6. With regard to the first point, it will be seen that the offence under Section 289 of the Indian Penal Code is a cognizable offence and, therefore, the provisions of Chapter XIV of the Code of Criminal Procedure would be attracted for the purpose of investigation. It is impossible from the records to check whether or not the investigating officer had admitted that he had recorded in extenso the statement of the witnesses examined by him. In the explanation submitted by the learned Magistrate he has not stated that this statement of the petitioner was incorrect. On the other hand the learned Magistrate, in his judgment has stated that it was obvious that the police failed to give these copies under Section 173 of the Code of Criminal Procedure out under Section 537 of the Code there has been no failure of justice, although the petitioner could raise the objection, it was raised not at the very outset but towards the close of the trial. Even if this objection was raised, as it was stated to have been done at the close of the trial, in view of the defence set up, in my view, it was only fair for the Magistrate to have at least allowed the petitioner to go through the statements made to the police.
7. On the second point, Section 263 of the Code of Criminal Procedure does not in terms enjoin upon the Magistrate the duty of recording the evidence in extenso. But it has been held in many cases of this Court that it is nevertheless incumbent on the Magistrate to put on record sufficient evidence to justify his order.
8. In all these facts and circumstances, I think that this ease should be retried not under the provisions of Section 260 of the Code but in the regular way after giving the petitioner an opportunity of examining the statements of the various witnesses recorded by the investigating officer.
9. The order of conviction and sentence is, therefore, set aside, and the case sent back for trial by a Magistrate other than Sri N. C. Chatterjee.
10. The Rule is accordingly made absolute.