N.K. Sen, J.
1. This appeal which is under the provisions of Section 417(3) of the Code of Criminal Procedure must be allowed.
2. A complaint was filed by the appellant against the respondent Sailendra Nath Sen before the S.D.O., Basirhat, alleging that the respondent had committed offences under Sections 352 and 504 of the Indian Penal Code. The learned Magistrate who tried the case decided to proceed under the provisions of Section 260 of the Code of Criminal Procedure. It appears from the order-sheet of the case that on 22nd April, 1957 four prosecution witnesses were examined in chief and two were cross-examined before charge. On the next date two more prosecution witnesses were examined and cross-examined before charge. On the next date of hearing prosecution witnesses Nos. 1 to 4 were cross-examined. On 16th May, 1957 the respondent was said to have been examined under Section 343 of the Code of Criminal Procedure. The learned Magistrate then adjourned the case for examination of defence witnesses, if any. No defence witnesses were, however, examined. On 26th August, 1957, P.W. 5 was cross-examined after charge and the respondent examined again. Finally on 18th October, 1957 the learned Magistrate acquitted the accused respondent and passed the following order :
'Heard argument. The accused is acquitted under Section 258 (1), Cr. P. C. after summary trial.'
3. I have searched the record in the hope of getting some indication as to what the witnesses had stated and what were the reasons that induced the learned Magistrate to come to the conclusion that he did. My search, however, was useless and I did not anywhere find anything which would enable me to come to decide whether the learned Magistrate's order was justified in the present case. Section 504 of the Indian Penal Code deals with an offence which is to be tried as a warrant case. It may be observed that no charge has been framed in the case and in the column for recording the plea of the accused, the learned Magistrate has only noted that 'the accused pleads not guilty under Section 342 of the Code of Criminal Procedure.'
4. I had had occasion to examine the records of many cases tried under the summary procedure but I do not remember to have seen a more unsatisfactory way of disposing a case than the present one. It is absolutely impossible for an appellate Court to feel satisfied as to the legality or the propriety of an order from the records of a case like this.
5. Mr. Kali Mohan Chakravartti cited before me the case of State v. Ishar Das , decided by Falshaw and Kapur, JJ. In that case the learned Judges found that it was not shown in the extract from the summary register as to what the summary of the evidence of the prosecution witnesses or the other witnesses was. Their Lordships further found that there was nothing from which the appellate Court could come to the conclusion as to what the evidence was and why the accused had been acquitted and in that view their Lordships set aside the order of acquittal on the finding that there had been no proper trial in the case.
6. Mrs. Bose appearing on behalf of the respondent, in this case has argued that no reasons need be given when the Magistrate acquits the accused in a summary trial. Reasons are required to be given only where the learned Magistrates convict the accused and in support of her contention she referred to Section 263 (h) of the Code of Criminal Procedure. As I have said there is nothing in this case from which I can come to the conclusion as to what the evidence was and why the accused had been acquitted. It was pointed out in the Punjab case cited above that the view taken in Calcutta High Court in some of the earlier case that though a case had been tried in a summary way, it was incumbent upon the Magistrate to put on record sufficient evidence to justify his order was the correct view and their Lordships agreed with that view. The section which applies to the facts of the present case is Section 264 and not Section 263 of the Code of Criminal Procedure because under Section 414 of the Code of Criminal Procedure no appeal lay from summary conviction where the sentence passed was a fine not exceeding Rs. 200/-. Mrs. Bose further cited the case of Satish Chandra Mitra v. Manmath Nath Mitra, decided by Mookerjee, A.C.J. and Fletcher, J. (ILR 48 Cal 280: (AIR 1921 Cal 165)(B)), where a conviction was set aside where the Magistrate had destroyed the notes he had made of the evidence of each witness as his examination proceeded. Here in the present case no notes even appear to have been made and the learned Magistrate in his explanation to this Court also does not say that he made a memorandum of the evidence and decided the case on that evidence. So the case cited above by Mrs. Bose does not help her at all. In the present case also it will be further seen that the examination of the witnesses was finished on 16th May, 1957 and the order was passed five months after, that is, on 18th October, 1957, and it was difficult for the learned Magistrate to have remembered the evidence adduced by the witnesses before him after such a long time. Mrs. Bose also submitted relying on the case of Bhagwan Das v. State of Rajasthan : 1SCR854 , that orders of acquittal should not be set aside by the High Court unless there were compelling reasons to do so. In the present case I find that as it is not possible to decide whether the order passed by the learned Magistrate was legal or proper, this is a fit case in which the High Court should set aside the order of acquittal.
7. I, therefore, set aside the order of acquittal passed in the case and remit the case back to be tried according to law by a Magistrate other than Shri S.K. Chanda, to be nominated by the District Magistrate.
8. The appeal is allowed accordingly.