JUDGMENT
K. Sahai, J.
1. The 2nd Additional Sessions Judge of Bhagal-pur has made this reference under Section 432 of the Code of Criminal Procedure. He has expressed the opinion that the provisions of Sections 260, 263 and 264 of Chanter XXII of the Code of Criminal Procedure (hereinafter to be referred to as the Code) violate the fundamental right guaranteed under Article 14 of the Constitution, and are, therefore, void under Article 13. He has also observed that there is a denial of fair trial to a person who is tried in a summary way under these sections.
2. I propose first to consider the place of summary trial in the scheme of the Code and its salient features. Offences have been divided into four
classes in the Code according to their gravity for the purpose of trial, and correspondingly four different modes of trial have been provided for. The most serious offences which call for a more severe punishment than imprisonment for two years are, with the exception of cases triable by Magistrates empowered by the State Government under Section 30 of the Code to be tried by the High Court or a Court of Session. A rather elaborate procedure for a trial before these Courts has been laid down. Under Section 4(W),
“a warrant-case means a case relating to an offence punishable with death, imprisonment for life, or imprisonment for a term exceeding one year.” Before the amendment of 1955, the period was six months instead of one year. Cases relating to other offences are summons-cases. The procedure for trial of warrant-cases is more elaborate than that for the trial of summons-cases. Cases which can be tried summarily under Chapter XXII are those of very minor offences in which the ends of justice do not require a more severe punishment than that of imprisonment for three months. I may usefully quote in this connection the observation of Fazl Ali, J. in State of West Bengal v. Amvar Ali Sarkar, AIR 1952 SC 75 at p. 83 (A).
“Now the framers of the Criminal Procedure
Code (which is hereinafter referred to as “the Code”) also were alive to the desirability of having a speedy trial in certain classes of cases, and with this end in view they made four different sets of provisions for the trial of four classes of cases these being provisions relating to summary trials, trial of summons cases, trial of warrant cases and trial of cases triable by a Court of Session. Broadly speaking, their classification of the offences for the purpose of applying these different sets of provisions was according to the gravity of the offences, though in classifying the offences fit for summary trial the experience and power of the trying Magistrate was also taken into consideration. The net result of these provisions is that offences which are summarily triable can be more speedily tried than summons cases, summons cases can be more speedily tried than warrant cases, and warrant cases can be more speedily tried than sessions cases. The framers of the Code appear to have been generally of the view that the graver the offence the more elaborate should be the procedure for its trial, which was undoubtedly an understandable point of view, and no one has suggested that their classification of offences for the four different modes of trial to which reference has been made is unreasonable in any sense.”
3. The important points to be noted in connection with summary trials are :
1. Offences enumerated in Clauses (a) to (m) of Section 260 can be tried summarily only by the following classes of Magistrates :
(i)
the District Magistrate.
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(ii)
a Magistrate of the first class.
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Specially empowered by the State Government to hold summary trials.
(iii)
a Bench of Magistrates with first class powers.
It is to be noticed that great care has been taken in choosing the officer who can hold summary trials. The District Magistrate is generally an experienced officer, and it can only be expected that, in selecting the other first class Magistrates or Bench of Magistrates, the State Government would choose whom it considers fit by reason of their experience and acumen to exercise the power.
2. The Magistrate or Bench concerned need not try summarily all classes of offences enumerated in Clauses (a) to (m) of Section 260. A discretion has been given to him or them under Sub-section (1) to try a case in a summary way if he or they consider it fit. It has been provided in Sub-section (2) that, even if a Magistrate or Bench have commenced to try a case summarily, he or they may step the summary trial and start trying the case in the ordinary way if he or they find that the case is of a type which it would be undesirable to try summarily. Thus, judicial discretion has to be exercised by the Magistrate or Bench at the stages, one before the commencement of the trial and another after such commencement. If, at any stage, he or they feel that the case
ought to be tried in the ordinary way as provided by the Code, there is nothing to prevent them from following the appropriate procedure.
3. When a case is tried summarily, the maxi-
mum sentences of imprisonment which can be imposed upon the accused upon his conviction is three months. If a fine of Rs. 200 or less is imposed, no appeal lies in view of Section 414 of the Code. If the fine exceeds that amount, or if any sentence of imprisonment is inflicted, an appeal lies. 4. Under Section 262(1), the procedure prescribed for summons cases has to be followed in summons cases, and the procedure prescribed for warrant cases has to be followed in warrant cases, even when they are tried summarily, with the following exception; (a) In cases where no appeal lies, the Magistrate or Bench need not frame a formal charge, nor need they record the evidence of the witnesses. Section 263, however, gives a list of the particulars which they must supply. Three of these particulars are : ''(f) the offence complained of and the offence (if any) proved, ..... (g) the plea of the accused and his examination (if any); and (h) the finding, and, in the case of a conviction, a brief statement of the reasons therefor;" (b) Under Section 264, as it stood before the amendment of 1955, a Magistrate or Bench was required ' to "record a judgment embodying the substance of the evidence and also the particulars mentioned in Section 263" in appealable cases.
4. It is manifest from Sections 262 to 264 that the only departure from ordinary trials in the case of a summary trial is that, in non-appealable cases, no charge need be framed and no evidence need be recorded while, in appealable cases, a substance of the evidence has to be recorded. The learned Judge has taken exception to the fact that no evidence has to be recorded in one case and only a substance of the evidence has to be recorded in the other case. He has stated :
“In criminal cases the cross-examination of the prosecution witnesses is a very powerful instrument with the aid of which an accused can throw doubt upon the prosecution case or demonstrate his innocence. Very often the veracity of the witnesses is tested by the fact whether they are able to state the details of the occurrence in question; any discrepancy of a vital nature occurring in the statement of the prosecution witnesses may at time be sufficient for the acquittal of the accused. In non-appealable cases tried in a summary way the accused is altogether deprived of this valuable right and in appealable ones that important right is considerably curtailed. Thus in non-appealable cases there has to be only the farce of a trial and in appealable ones the right of fair trial is denied to the accused.”
In my opinion, the learned Judge has confused the right of cross-examination with the right to get it
fully recorded and has taken an erroneous view of what does or does not amount to fair trial. There will be undoubtedly a denial of fair trial to a person who does not get (a) reasonable notice of the case which he has to meet or (b) reasonable opportunity to be heard in his defence; or (c) is tried by a tribunal which has itself an interest in the case. The trial will not be fair if the Court refuses without sufficient reason, to hear the evidence (“including examination-in-chief, cross-examination and re-examination) or all such witnesses as are brought before it. There is nothing in the impugned provisions to show that an accused in a case of summary trial has no right of cross-examination of all prosecution witnesses and is deprived of this valuable right. He has clearly the full right of cross-examimtion. It is, however, not an essential ingredient of fair trial that the entire evidence or the entire cross-examination of all witnesses must be recorded in extenso.
5. The learned Additional Sessions Judge has wrongly assumed that the Magistrate or Bench concerned would omit to note something material to the defence of the accused. That would be unfair, and, if such an assumption of unfairness can be made in the case of a summary trial, a similar assumption may be made in a case of an ordinary trial where the entire evidence has to be recorded. Obviously, such a baseless assumption cannot be made.
6. In appealable cases, the position is perfectly clear because a substance of the evidence has got to be recorded. That means that a substance of the entire evidence, including what is material to the defence of the accused must be recorded. In non-appealable cases, there is no appeal but the order of conviction is subject to revision by the High Court. The revisional Court has to be satisfied about the correctness of the conviction. In order that the revisional Court should be so satisfied the trial court has to give sufficient indication of the evidence for and against the accused. This is apparent also from Clauses (f) and (h) of Section 263. In practice, it will hardly be possible for the Court to state the offence complained of and the offence proved or to give reasons for a finding of conviction without giving briefly an indication of the evidence adduced. There is no reason to suppose that the Magistrate or Bench would omit to take into consideration or to refer to anything in the evidence which is in favour of the accused. In these circumstances, it is manifest, and I hold, that there is no denial of fair trial to an accused who is tried summarily under the impugned provisions.
7. The meaning and scope of Article 14 of the Constitution have come up for consideration in the Supreme Court in a large number of cases. Simply stated, it is well-settled that the State has a wide latitude and discretion in classifying persons, objects and the like for the purposes of legislation. It is not at all necessary that all laws made by the State must be general in character and universal in application. What is, however, necessary is that the classification must be reasonable and the basis of the classification must have a rational connection with the object of the enactment. When such a classification has been made and a group formed, one or more of that group cannot be treated on a basis different from the others of the same group or, in other words, they cannot be discriminated against, I cannot do better than to quote the observation of S. R. Das, J. (as he then was) in Anwar Ali’s case (A) (already referred to);
“All persons are not, by nature, attainment or circumstances equal and the varying needs of different classes of persons often require separate treatment and. therefore, the protecting clause has been construed as a guarantee against discrimination amongst equals only and not as taking away from the State the power to classify persons for the purpose of legislation. …… The classification
must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to object of the legislation.
In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes these that are grouped together and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act….. In short, while the Article forbids class legislation in the sense of making improper discrimination by conferring” privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation……..”
8. The learned Additional Sessions Judge has referred to several ‘decisions of the Supreme Court merely for the purpose of quoting some observations from different judgments. He has not relied upon the decision in any of those cases as governing the present case. I need refer to only a few of them. In Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 (B), the Saurashtra State Public Safety Measures (Third Amendment) Ordinance, 1949, was in question.
There was plenty of difference between the procedure laid down for trial before the Special Court constituted under that Ordinance and that laid down under the Criminal Procedure Code for trial of similar offences. One difference was that ordinarily the Special Judge presiding over the Special Court was required to record only a memorandum of the substance of the evidence of each witness.” No objection appears to have been taken that this provision would amount to a denial of fair trial, and it was held by majority of the learned Judges who heard the case that the Ordinance was not unconstitutional.
9. Mrs. Lall has relied upon an observation
of B. K. Mukherjea, J. in Qasim Razvi v. State of Hyderabad, AIR 1953 SC 156 (C). The constitutionality of the provisions of the Hyderabad Special Tribunals Regulation (5 of 1358 F.) was in question in that case. Under Sub-section (2) of Section 4, the Special Tribunal constituted under the Regulation was authorised to dispense with the recording of evidence in extenso and to cause to be taken down a memorandum of the substance of the evidence of each witness. Under Sub-section (7) of the same section, the Tribunal was directed to follow the procedure prescribed for summary trials by Magistrates, though it was open to it in certain circumstances to follow the warrant procedure, if it thought fit. The observation which Mrs. Lall has relied upon is as follows :
“The provision relating to summary trial irrespective of the nature of the offence and also that
relating to recording of evidence in a summary manner may be considered prejudicial to the accused and may normally deprive him of benefits which are enjoyed by other persons similarly situated who are tried under the ordinary law.”
10. Mrs. Lall has submitted that summary procedure and recording of a memorandum of the
substance of the evidence have thus been condemned. On this basis, she has argued that the summary trial under the impugned provisions in the present case should also be held to be violative of Article 14. In my opinion, there is no substance in her argument. It has been made clear in the observation itself that the questioned provisions, of the Regulation were prejudicial to the accused because they existed “irrespective of the nature of the offence.” In the present case, I have to deal with a well-defined classification. The pettiest offences in which a sentence of imprisonment to the maximum of three months would be sufficient have been grouped together and put into one class. The object with which it has been done is to ensure speedy trial of persons committing all the offences in the group. There is a nexus between the object and the basis of the classification. Hence, I am unable to hold that the impugned provisions in the present case infringe the equal protection clause of Article 14.
11. In my opinion, the case of Budhan Coundhry v. State of Bihar, (S) AIR 1955 SC 191 (D) fully covers this case. It was complained in that case that, wherever a Magistrate empowered under Section 30 of the Code exercised jurisdiction, two Courts of equal jurisdiction existed. One was his Court, and the other was the Court of Session. It was contended that when one accused was sent for trial to one and another was sent for trial to the other Court, there would be discrimination. In rejecting this contention, S. R. Das, J. stated ;
“If the State invests any Magistrate with powers under Section 30 any body who commits any offence not punishable with death and triable by a Court of Session under Section 28 read with the second Schedule is also liable to be tried by the section 30 Magistrate. The risk of such liability falls alike upon all persons committing such an offence. Therefore, there is no discrimination in the section itself.”
12. Summary trial under the impugned provisions stands upon a better footing. Suppose three persons, A, B, and C, commit an offence under Section 323. The liability to be tried under the ordinary procedure or the procedure of a summary trial tails upon all three of them alike. If A is tried according to the ordinary procedure, he is liable to be sentenced up to the maximum period of imprisonment of one year.
If B is tried summarily under Section 264 on the footing that his case is appealable, the maximum period of imprisonment which can be imposed upon him is three months. If C is tried summarily under Section 263 on the footing that his case is non-appealable, be cannot be sentenced to any imprisonment, and the fine imposed upon him must be within the limit of Rs. 200. They are thus in three different classes. There is no question of discrimination inter se among any of those persons who are tried under Section 263, nor is there any such discrimination among the persons tried under Section 264.
13. It was pointed out in Budhan Choudhry’s case (D) that the ultimate decision as to whether a person would be tried by a Court of Session or by a Section 30 Magistrate rested with the Magistrate who had to exercise a judicial discretion. In the present case also, the Magistrate concerned has to exercise his discretion at two stages, as I have already shown, and he has to decide whether he would follow the summary procedure. Such exercise of discretion by him or them is subject to judicial review and is not arbitrary in any sense, as stated by the learned Additional Sessions Judge.
14. In the result, I am clearly of the view that the learned Additional Sessions Judge’s opinion is erroneous and that the impugned provisions are not hit by Article 14 of the Constitution. They can-
not, therefore, be held to be unconstitutional or void. The reference is, therefore, discharged. 15. The Court of appeal below will now proceed to dispose of the appeal pending in that Court in accordance with law. H. K. Chaudhuri, J.
16. I entirely agree. The learned Additional Sessions Judge seems to be of the view that the trial of an accused under the summary procedure is disadvantageous to him because in appealable cases the Magistrate can refuse to record details of the cross-examination while in non-appealable cases he is not required to record the evidence at all. The learned Judge, therefore, concludes that in non-appealable cases the accused is deprived altogether of the right of cross-examination which makes the trial a farce while in appealable cases “this valuable right” is considerably curtailed. In my opinion, the learned Judge’s conclusions are” based on a misapprehension as to the true scope of summary trials.
17. The procedure laid down in Chapter XXII, which relates to summary trials, is one of the several recognised modes of trial prescribed by the Code. As has been pointed out by Sinha, J. in Hanumantha Rao v. State of Andhra Pradesh, (S) AIR 1957 SC 927 (E) it is the avowed policy of the Legislature and there can be no doubt that it is in the general interest of administration of justice, that criminals should be brought to justice as expeditiously as the circumstances of the case would permit.
His Lordship further observes that that must also be in the interest of an accused person himself if he claims not to be guilty of any offence. The whole object of Chapter XXII is to save time by shortening the record and the work of the Magistrate in making the record in petty cases. The legislature by prescribing the mode of preparing the record in such cases has nowhere encroached upon the accused’s right of cross-examination which is otherwise available to him in the other modes of trial under the Act. Section 262 clearly states that in trials under this Chapter, the procedure prescribed for summons-cases shall be followed in summons-cases, and the procedure prescribed for warrant-cases shall be followed in warrant-cases.
There is thus no question of the accused’s valuable right of cross-examination being curtailed in any manner. As has been pointed out by my learned brother, the court below has confused the right of cross-examination with the right to get it fully recorded.
18. It is then said that the legislature has conferred upon the Magistrate an unguided discretionary power to decide which among the several accused, similarly circumstanced, shall be tried under the summary procedure and which of them under the ordinary procedure. This power, the court below observes, may be exercised “with an evil eye and unequal hand.”
Referring to (S) AIR 1955 SC 191 (D), where the Supreme Court considered the discretionary powers of a Magistrate to commit the accused under Section 347 instead of disposing of the case himself under the Section 30 procedure and observed that the discretion of the Judicial Officer was not arbitrary and was open to revision by superior courts, the court below has remarked that unlike the present case the accused in that case was not denied the right of a fair trial whether the trial was held by the court of session or the Magistrate. It further observed that the Magistrate’s discretion under Section 260 was not open to revision by a superior Court.
19. The thesis of the court below as regards the Magistrate being invested with unfettered discretion in Chapter XXII is founded on the premise
that the selection is made by him from among persons similarly circumstanced. This premise is altogether wrong, unless it is assumed that two persons accused of an offence, say of hurt, must for that reason alone be held to be similarly circumstanced. Two persons may be accused of an identical offence and yet in one case the offence may be grave and in the other simple.
In one case there may be complicated questions of right and title involving production of documents. No such questions may be involved in the other case at all. Again, one case may be hotly contested and the trial is likely to continue for a considerable time as it involves examination of a large number of witnesses and also perhaps a local inquiry. The other case, on the contrary, may be quite simple and the number of witnesses being very small may be disposed of quickly. Instances of circumstances differing in two sets of cases, both coming within the purview of the same section as enumerated in section 260 (1), may be multiplied.
If the Magistrate in the exercise of his discretion tries the simpler and shorter cases summarily as he is expected to do, it cannot be said that the discretion that he exercises is arbitrary. True, the legislature has not in clear terms laid down the “standards”, but it has indicated its underlying policy and purpose, in fulfilment of which the Magistrate is expected to select the persons to be brought under the operation of the summary procedure.
Further, as was pointed out in Budhan Choudhry’s case (D), the discretion of judicial officers is not arbitrary and the law provides for revision by superior courts of orders passed by subordinate-courts. There is, therefore, no ground for apprehension of capricious discrimination by judicial tribunals and none has been suggested in this case. The learned court below has tried to distinguish Budhan Chaudhry’s case (D) on grounds which are not at all sustainable. It is impossible to hold that an accused tried under Chapter XXII does not enjoy a fair trial only because the record that is prepared of the case is a brief one.
The observation of the learned Judge that the
court of revision is powerless to interfere where a
Magistrate tries a case summarily which, having
regard to the nature and gravity of the offence he
should have tried under the ordinary procedure, is
equally unacceptable.