Posted On by &filed under Bombay High Court, High Court.

Bombay High Court
Emperor vs Ganu Sadu on 12 January, 1928
Equivalent citations: (1928) 30 BOMLR 371
Author: Fawcett
Bench: Fawcett, Mirza


Fawcett, J.

1. In this case a complaint was made against the two applicants and four others that they had forcibly opened the door of the complainant’s house, dragged him out into the verandah, and then assaulted him so as to have committed offences under Sections 147, 323, 452 and 506, Indian Penal Code. A complaint was made to the Resident First Class Magistrate, Karad. He held a preliminary inquiry under Section 202, Criminal Procedure Code; and as he found that the complainant’s story was supportted by two witnesses, he ordered process to issue under the sections I have mentioned, except Section 452, which he cut out. On the accused appearing, the Magistrate tried the case summarily and eventually acquitted all but the two petitioners. In regard to them he held that it was proved that they had given the complainant a beating, and he convicted them under Section 323, Indian Penal Code, and directed each of them to pay a fine of Rs. 60. An application was then made to the Sessions Judge, Satara, to interfere in revision. It was objected before him that the Magistrate erred in trying the case summarily because the offence under Section 147, Indian Penal Code, is not, in fact, triable summarily under Section 260, Criminal Procedure Code. The Sessions Judge, however, held that this was a mere irregularity and had not led to any injustice, as not one of the accused was convicted under that section. He accordingly, dismissed the application.

2. The petitioners come before us and repeat the same objection. Under Section 530, Clause (q), Criminal Procedure Code, if a Magistrate not being empowered by law in that behalf, tries an offender summarily his proceedings shall be void The question is, whether in fact the First Class Magistrate did try the two petitioners for the offence under Section 147, Indian Penal Code. I can see no sufficient ground for saying that he did not so try the two petitioners, inasmuch as process was issued to them to answer a charge under that section, and there is nothing to show that either at the commencement of the trial, or even during the trial before the conviction of the accused, that particular charge was withdrawn. In fact, the evidence of the complainant substantiated that particular charge, although that evidence was considered to be exaggerated and was not wholly credited by the Magistrate. No doubt, if the ordinary procedure for a warrant case had been followed, the Magistrate would have had to frame a charge, and probably he would not have framed a charge under Section 147, Indian Penal Code. A question might then reasonably arise whether he could be said to have tried the offender under Section 147, Indian Penal Code. But in a case triable summarily, where a non-appealable sentence is given, the Magistrate under Section 263, Criminal Procedure Code, need not frame a formal charge; but under Clause (f) of that section he has to specify in his record the offence complained of, and the offence (if any) proved. It seems to me in these circumstances that it is mainly the offence complained of, in regard to which process had been issued, that determines whether a particular accused has been tried for an offence in a case where the trial is held summarily and falls under Section 263; and I can see no sufficient ground for saying that in this case the petitioners were not put in peril of conviction in regard to the accusation of their having committed an offence under Section 147, Indian Penal Code, and that they were not actually tried for that offence. This view is in accordance with that taken by the Calcutta High Court in Chandra Mohan Das Mandal v. King-Emperor (1908) I.L.R. 33 Bom. 33, s. c. 10 Bom. L.R. 759. Therefore, it seems to me that the contrary view taken by the Sessions Judge that the summary trial was a mere irregularity curable under Section 537, Criminal Procedure Code, is not correct. In my opinion the case falls under Section 530, Clause (q), Criminal Procedure Code Therefore, the proceedings of the Magistrate must be held to be void. The convictions of the two petitioners under Section 323, Indian Penal Code, are set aside. The amount of fine, namely, Rs. 60, if paid, should be refunded to each of the accused; and if it has been paid as compensation to the complainant in accordance with the Magistrate’s order under Section 545, Criminal Procedure Code, it must be refunded by the complainant. As to whether there should be a re-trial, we do not ourselves think that it is necessary to order a re-trial. But if the complainant renews his complaint, that is a matter which will not be affected by our present order. We do not mean to prejudice any rights he may have in the matter.

Mirza, J.

3. I agree

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