GOPALBHAI PARSHOTTAMDAS CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this petition the petitioner is convicted for the offences punishable under secs. 279 337 338 304 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 days and fine of Rs. 50 7 days and fine of Rs. 50 15 days and fine of Rs. 100 and 30 days and fine of Rs. 250/- respectively for each of the aforesaid offences and for every default of fine 10 days further R. I. Though he was also convicted for the offences under secs. 112 and 116 of the Motor Vehicles Act no separate sentence was awarded for the said offences. This order of conviction and sentence was passed by the learned Judicial Magistrate First Class 3 Court Narol in Criminal Case No. 2881 of 1982. Criminal Appeal No. 74 of 1983 filed by the petitioner-accused in the Sessions Court Ahmedabad District (Rural) at Narol was also dismissed. Hence this revision.

(2.) Having gone through the papers and judgments of the Courts below it was found that the conviction of the petitioner was quite justified. Mr. Jayant M. Panchal learned Advocate for the petitioner however raised a point before me that this case having been heard as a warrant triable case the learned Magistrate has not followed the provisions of sec. 248(2) of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) and therefore no opportunity was given to the accused to put forth his say about the sentence ar for grant of benefit of probation under the Probation of Offenders Act 1958 or sec. 360 of the Code. As this point was raised rule was issued in this revision petition so far as legality of the order of sentence was concerned.

(3.) When the matter came up for hearing Mr. M. A. Trivedi learned Public Prosecutor for the State submitted that the offences are such as could be tried as summons case. Record and proceedings are before the Court. Having scanned the record and proceedings it clearly transpires that the learned Magistrate conducted the case as warrant triable case. It is true that these offence are summons triable but the learned Magistrate has proceeded with the case as a warrant triable case. Probably he has exercised the jurisdiction vested in him under sec. 259 of the Code wherein there is power of the Court to convert summons-cases into warrant cases. Even if it is either a summons-case or a summary-case because under sec. 262 of the Code procedure for summary trials specified even for trial of summons case under sec. 255(2) of the Code a Magistrate has to consider whether he proposes to proceed under sec. 360 of the Code or not and for that he shall have also to follow the provisions of sec. 361 of the Code. At any rate as this is a warrant triable case this question does not arise in the instant case but it is necessary that the Magistrate should be conscious of this provision even for a summons triable-case.