1. The petitioners have been convicted under Section 186, Indian Penal Code, and sentenced to pay fines of Rs. 150, Rs. 30 and Rs. 75 respectively. The Magistrate purported to dispose of the case under summary procedure. So under Section 414, Criminal Procedure Code, the petitioners had no right of appeal. They moved the Sessions Judge for a reference to this Court, but without success.
2. The circumstances under Which we issued a Rule are as follows. The petitioners were summoned under Section 186 and Section 206, Indian Penal Code. Offences under the latter section cannot be tried summarily, and the learned Magistrate began to try the case under Chapter XXI, recording the evidence in the manner prescribed in Chapter XXV. Seven witnesses for the prosecution were thus examined-in-chief on September 17th, the accused were also examined on that day. Then the Magistrate recorded this order: 'As no offence under Section 206, Indian Penal Code, has been made out, the case will go on under Sections 186, 143, Indian Penal Code, and will be tried under Section 260, Criminal Procedure Code.' Afterwards, on the 29th of September, the prosecution witnesses were re-called for cross-examination. Then defence witnesses were examined, and the Magistrate then made use of one of the forms authorized for use in summary trials, and recorded a judgment, which began on the first page of that summary form.
3. So far as the examination of the witnesses is concerned, it may be that the record is as full as it would have been if there had been no change of procedure. The cross-examination of the prosecution witnesses covers a fair amount of paper, and, save of the fact that the usual details of parentage, residence and occupation are not given, the same is true of the evidence given by the defence witnesses.
4. The argument pressed-before us, and the ground on which we issued the Rule is, that the learned Magistrate could not, after examining the prosecution witnesses-in-chief in the regular manner, change his procedure to that allowed by Chapter XXII.
5. The learned Magistrate in his explanation has 'drawn our attention to several reported decisions, but none of them touch the point now raised. We are not concerned with the question whether a Magistrate may strip a story of its embellishment, but with the question whether he may change his procedure in the middle of a trial. The Code itself provides, by the second clause of Section 260(2), for the converse of what has happened here, and requires in effect a de novo trial. I doubt, however, whether any useful inference can be drawn from the absence of any provision as to what should be done when, in the course of a regular trial, it appears desirable that the case should be tried summarily.
6. It appears to me that the question resolves itself into the question whether the petitioners have been 'prejudiced or not. The learned Magistrate says that they have not been prejudiced. I cannot agree. On the contrary, I think the petitioners have suffered prejudice in two ways. The first is in the recording of evidence. Possibly in fact the record is as full as it-would have been, had the Magistrate continued to try the case in the regular manner, but we have to look at what the law required of the Trying Magistrate and an accused person may reasonably complain of a procedure which has caused the examination-in-chief of the prosecution witnesses to be recorded in the form of a narrative under, Section 339, Criminal Procedure Code, while the cross-examination of those same witnesses, and the whole evidence of the defence witnesses, need not appear on the record at all. The second and graver prejudice is, that two of the petitioners have lost the right of appeal. That is a loss which needs no comment. I only wish to point out that the gravity of the prejudice seems enhanced rather than lessened by the fullness of the record actually prepared by the Magistrate. Prima facie there is material on which an Appellate Court could exercise its judgment, but a few words in the order-sheet and the use of a form with a particular heading have deprived two of the petitioners of the right they would otherwise have had.
7. In my opinion the Rule must be made absolute on the ground that the Magistrate's procedure is not authorized by law and has caused prejudice to the petitioners.
8. The result is, that the convictions and sentences are set aside; and it is ordered that the fines, if paid, be refunded.
9. We are asked to say that the case should not be re-tried by the same Magistrate as he has shown cause before us and also before the Sessions Judge, and consequently he may find it difficult to approach the case with an open mind. As the learned Pleader on behalf of the petitioners undertakes, that his clients will not ask for the prosecution witnesses to be again examined-in-chief, I think this concession, may be allowed. The case will go back to be: tried by some competent Magistrate, other than Mr. R.L. Acharjee, to be nominated by the District Magistrate; and such Magistrate will proceed with the case from the point which it reached on September 17th, and dispose of it in accordance with law.
10. I agree.