GOVINDA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This is a petition under S.482 Cr.P.C., and this Court is being asked to recall its order in Cr.R.P.No.2 of 1977 dated 7-3-1977 at any rate to the extent that the plea under 8.248(2) of the Code was not noticed and decided by this Court.

(2.) The prosecution case emerged out of the police complaint filed by one Jagannatha Iyengar against the petitioner-accused No.1 and one of his companions for the offence under S.392 I.P.C. It was stated that A-1 went to the shop of lyengar on 26-8-1975 at about 8-30 p.m., along with another person, and under threat by show of a knife snatched away Rs.5 from him. The complainant went to the police station on the very next day and gave an oral complaint. The police did not take any action. Thereafter on 17-9-1975, A-l again came to the shop of lyengar and abused him in vulgar language telling as to why he had informed the matter to the police and that he would come to grief. So saying he kicked the show-case and caused some damage to the shop. After the second incident, on 18-9-1975 the complainant went to the police station and lodged a complaint which gave raise to the police case under S.392 I.P.C., against the two accused. The learned Magistrate convicted A-1 and sentenced him to undergo rigorous imprisonment for six months and acquitted A-2 of the offence. A-l thereafter came up in appeal before the II Addl, District and Sessions Judge, and there too he did not succeed. However, the sentence of R.I. was reduced to four months. A revision was filed in this Court and that was dismissed in the presence of the learned Counsel for the petitioner on 7-3-1977. The present application under S.482 is filed for recalling that order.

(3.) The learned Counsel for the petitioner in the grounds of petition under review has stated that the learned Magistrate did not pay regard to S.248(2) inasmuch as he did not hear the accused on the question of Sentence before awarding him six months rigorous imprisonment. In view of the decision of the Supreme Court in Santa Singh v. The State of Punjab, AIR 1976 SC 2386. the non-compliance with the requirement of 8.235(2) cannot be described as more irregularity in the course of the trial curable under S.465. It is much more serious as it amounts to by-passing an important stage of the trial and omitting it altogether so that the trial cannot be said to be that contemplated under the Code. It is a different kind of trial conducted in a manner different from that prescribed by the Code. This deviation constitutes disobedience to an express provision of the Code as to the mode of trial, and goes to the root of the matter and the resulting illegality is of such a character that it vitiates the sentence. Accepting the decision of that case the sentence awardea to the petitioner has got to be vacated. The learned Counsel for the petitioner contended that 8.248(2) was referred before the learned' Sessions Judge. Similarly, it was contended in the grounds of revision preferred in this Court that the petitioner was not heard on the question of sentence although reference was made to S.248(2). It is manifest the learned Counsel who appeared for the petitioner did not refer to S.248(2), but rather stressed before this Court that a lenient view should be taken in the matter of sentence and benefit be accorded to the petitioner under the provisions of Probation of Offenders Act. That part of the argument was met with. However, the fact remains that the plea taken up by the petitioner, although not argued by the learned Counsel, could not be stated to have been given up. More so, when there is a strong observation by the Supreme Court in the aforementioned authority and the very sentence awarded by the learned Magistrate could be stated to be vitiated and need be set aside. Therefore, the mistake committed by this Court by not noticing the plea under S.248(2) is by itself a mistake which requires correction and it has resulted in the miscarriage of justice. The order dated 7-3-1977 of this Court decided in revision has to be recalled to the extent that the sentence awarded by the court below has to be set aside and the case has to be remanded to the learned Magistrate for hearing the accused on the question of sentence under S.248(2) and thereafter he would decide about the sentence.