HSAHADEVIAH AND Vs. VENKATAMMA

JUDGEMENT

(1.) On a complaint petition filed by one Venkatamma who is examined as P.W. 2 in the case against the petitioners-accused, the learned Second Magistrate, Bangalore, directed the case to be taken on file and it was accordingly registered as C C No. 812 of 48 49. Amongst other things it was alleged in the complaint that the accused beat and kicked the complainant on 12 2-1949 at about 7.30 p. m. The learned Magistrate tried the case summarily for an offence under Section 323, Penal Code, and found the accused persons guilty and convicted and sentenced them to pay a fine of Rs. 30 or in default to suffer rigorous imprisonment for six days. It is against this order the accused have come up in revision before this Court.

(2.) The learned Advocate for the petitioners argued at the outset that the trial Magistrate having failed to comply with the mandatory provisions of Section 342, Criminal P.C., by note examining the accused after prosecution witnesses were further cross-examined by him and before they were called upon to enter their defence, the judgment of the learned Magistrate is liable to be set aside. But it is held by a Full Bench decision of this Court reported in 29 Mys. C.C.R. 241, that an accused person should be examined generally on the case after the whole of evidence produced in support of the prosecution has been taken by the Court : provided this is done, it is not obligatory on the Court to further examine him after any prosecution witnesses whose evidence has been already taken, are recalled at the instance of the accused and cross examined are re-examined and an omission to do so is neither an illegality which vitiates to trial nor an error or irregularity which requires to be cured under Section 537, Criminal P.C. I, therefore, fail to see any force in this contention.

(3.) It was next urged by the learned counsel for the petitioners that the motive set up by the complainant for the assault on her by the accused was that the accused persons were backing up one Papiah who was a rival claimant for the very plot of land she had obtained from Government, which matter she avers in her complaint is being fought out by the parties before the second Munsiff's Court, Bangalore. That there being nothing on record to corroborate the said statement, it is urged that the motive set up by the complainant can neither be accepted as true nor taken proved. There is of course nothing on record to corroborate the allegation made in the complaint petition. The learned counsel has next pointed that the Magistrate has come to a ready conclusion without ever attempting to discuss critically the evidence placed before him which if done would not have warranted such a decision as is arrived at by him. Though the offence was said to have been committed on 12th February 1949, the complaint petition was actually presented on 18th February 1949 and there is no explanation forthcoming for the delay of six days. It is again stated in complaint that she approached the police for redress and as the Police did not move in the matter she was obliged to file the complaint before Court. No attempt is made either to summon the complaint petition filed before the Police or the Police Officer before whom she complained to speak to that effect. That would certainly have strengthened her case if only it were true. The notes of evidence recorded by the Magistrate discloses that the offences complained of was committed in the dark half of the month just before the New Moon day at about 7.30 P.M. It would have been certainly a point for consideration whether it would be possible for anyone to identify properly the accused persons that committed the offence. The learned Magistrate has unfortunately not considered these aspects of the case in his judgment but has glibly believed what the prosecution witnesses have stated and has come to a finding without even attempting to give reason for the same which practice must be deprecated. 3a. A still more important point canvassed before me is that the learned Magistrate acted improperly in trying the accused for an offence under Section 323, Penal Code, while the complaint petition disclosed that the offences complained of were indeed more serious and heinous capable of being brought under Sections 355, 448, 506, 307 and 342, Penal Code, than the one tried by him and the Magistrate was not therefore justified in ignoring the serious offences and take cognizance of a simple offence in order to enable him to try it summarily. In support of his contention the learned advocate for the petitioners relied on a series of cases decided by the High Courts of the Dominion of India some of which will be adverted to presently. Empress v. Abdul Karim, 4 cal, 18:)3 C.L.R. 44); Kailash Chander v. Joynuddi, 5 C.W.N. 252; Debi Ram v. King Emperor, A.I.R. (11) 1924 ALL. 675 (2) : (25 Cr.L.J. 1168), Balwant Singh v. emperor A.I.R. (26) 1939 ALL. 693 : (41 Cr.L.J. 91) and Bishu Shaik v. Saber Mollah, 29 Cal. 409 : (6 C.W.N. 713). In the case reported in Balwant Singh v. Emperor, A.I.R. (26) 1939 ALL. 693 : (41 Cr.L.J. 91), where the accused was charged with offences under Sections 147 and 452, Penal Code, in the complaint petition but the Magistrate issued summons under Section 448, Penal Code, having tried summarily, convicted the accused under Section 452, it was held by their Lordships that the Magistrate was not empowered by law to hold a summary trial in such a case and proceedings were void under Section 530, Criminal P.C. In Bishu Shaik v. Saber Mollah, 29 cal. 409 : (6 C.W.N. 713), it was held that as the petition of complaint disclosed the commission of a much more serious offence than the offences for which the Magistrate held a sum mary trial and the examination of the complainant which had not been properly recorded did not show that such offence had not been committed, the Magistrate had acted without jurisdiction. Sri C. Nagaraja Rao, the learned counsel for the respondents, on the other hand relies on Empress v. Lachmi Narain, 1887 A.W.N. 103; Queen Empress v. Vallah Gopal, 1 Bom. L R. 683 and Gudar v. Emperor, A.I.R. (20) 1933 Oudh 50 (34 Cr L.J. 547), to show that it was not however incompetent for the Magistrate to try the case summarily. It is held in Gudar v. Emperor, A.I.R. (20) 1933 Oudh 50 : (34 Cr.L.J. 547) That where the case was of a petty character, the Magistrate was held to have exercised his discretion in trying the accused for the offence of theft and not for that of rioting. Though it is possible to distinguish the facts of the present case from the one cited above, I am with due deference to the Judges who have expressed their view in the above decisions cited by the learned counsel for the represents, inclined to agree with the preponderating view of the Dominion High Courts and hold that when the complaint petition discloses very serious and heinous offences as it does in the present case, it is not competent for the Magistrate to reduce it into a lighter one so as to enable him to clutch at a jurisdiction to try the case summarily which is injudicious.