1. The petitioners have been convicted of having committed theft in a building, an offence punishable under Section 380, Penal Code and sentenced to pay a fine of Rs. 20 each in default to undergo rigorous imprisonment for 20 days. The subject-matter of the theft is a goat. The ease for the prosecution is that this goat belonged to the complainant Krishna Pramanik and that he left it in charge of one Pashu Bauri. One of the accused wanted to purchase a kid which had been given birth to by this goat but his offer was refused. He got enraged and he and Kamala Kanta took away the mother goat by force and kept it in the house of Kamala-kanta, the defence taken is a total denial of this story. Kamalakanta claims the goat as belonging to him. The prosecution examined 7 witnesses and the defence examined 5. The learned Magistrate tried the case summarily and convicted both the accused as stated above.
2. Two grounds have been taken by the learned Advocate on behalf of the petitioners which I shall deal with in the following order. First he said that the learned Magistrate has erred in law in not complying with the provisions of Section 256, Criminal P.C. It is said that as each prosecution witness was examined, the accused cross-examined him and that after the close of the case for the prosecution the plea of the accused was taken but the Magistrate did not ask the accused to state at the commencement of the next hearing of the case or forthwith whether he wished to cross-examine further any of the witnesses for the prosecution. In failing to do so, the learned Magistrate commited a breach of the provisions of Section 256, Criminal P.C. The learned Magistrate has given his explanation but I am of the opinion that the explanation does not help in the support of the course pursued by the learned Magistrate.
3. It is true that the case was tried summarily but this did not absolve the Magistrate from following the provisions of Section 256, Criminal P.C. which occurs in the Chapter prescribing the procedure for the trial of warrant cases. Section 262, Cr. P.C. says that in summary trials, the procedure prescribed in summons cases shall be followed in summons cases and the procedure prescribed in warrant cases shall be followed in warrant cases except 'as hereinafter mentioned.' Now the offence punishable under Section 380, Penal Code is triable as a warrant case. The procedure prescribed for the trial of warrant cases should have, therefore, been followed with such exceptions as are mentioned in the Chapter dealing with summary trials. Section 263, Criminal P.C., lays down the manner in which the record of a summary trial should be kept in cases where an appeal lies. In this case no appeal lies. Now there is nothing in Section 263 which states that the provisions of Section 256, Criminal P.C. may be dispensed with in cases tried summarily. In fact Section 263 provides that the plea of the accused and his examination, if any, should be taken. Section 256 provides that if the accused when asked to plead claims to be tried he shall be required to state at the commencement of the next hearing of the case or if the Magistrate for reasons to be recorded in writing, so thinks fit, forthwith whether he wishes to cross-examine any, and if so which of the witnesses for the prosacution. The learned Magistrate in his explanation says that his only omission consists in a failure to record his reasons for asking the accused to examine the witnesses for the prosecution forthwith. I have been through the record, and I am of opinion that the learned Magistrate has entirely misconceived the law. Each of the witnesses for the prosecution was cross-examined immediately after his examination-in-chief and the plea of the accused was taken after the cross-examination of the prosecution witnesses. It was the duty of the learned Magistrate to question the accused after he had taken that plea whether they wished to crossexamine any of the prosecution witnesses. According to the provisions of Section 256, Criminal P.C., ordinarily ho should ask them this question at the next hearing of the case. In special circumstances, he may ask the accused to crossexamine the witnesses forthwith, that is immediately after their plea has been taken for reasons to be recorded. Here the learned Magistrate did not at all ask the accused this question after their plea had been taken. It is not a case of a mere failure on the part of the Magistrate to record his reasons for doing something. Here the learned Magistrate has failed to carry out the provisions of Section 256, Criminal P.C. in substance inasmuch as he did not ask the accused after taking their plea whether they wished to cross-examine any of the prosecution witnesses. In these circumstances, I must set aside the orders of conviction and the sentences passed against each of the accused.
4. The learned Advocate for the accused contends that upon the evidence the learned Magistrate should have acquitted the accused and that the reasons given by the learned Magistrate for disbelieving the defence witnesses and preferring to believe the witnesses of the prosecution are not good reasons. In my opinion, these are not matters in which I should enter on revision. It is true that the learned Magistrate when dealing with the defence evidence has given reasons for disbelieving them which may be said to be not sufficient reasons. But when discussing the evidence for the prosecution the learned, Magistrate has given reasons for believing the prosecution witnesses which cannot in revision be held to be bad reasons.
5. In these circumstances, I would not be justified in acquitting the accused. I direct that the case be re-tried in accordance with law after compliance with the provisions of Section 256, Criminal P.C. in the light of the observations made above.