PAKKIRISAMY PILLAI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS is areference from the District Magistrate, South Arcot at Cuddalore which raises a question of his jurisdiction under S. 436 o fthe Cri. P. C. to set aside an order of discharge made under S. 251-A of the code and remit the case for fresh disposal.

(2.) ON a police report, the respondent Pakkirisami Pillai was accused before the first Additional First Class Magistrate, Cuddalore, for an offence under S. 304a of th Indian Penal code, in that it was alleged that he drove the car MSX. 11 rashly and negligently along Sethiathope. Kumbakonam road at about 10-30 a. m. on april 22, 1960, and caused the death of one Sellan of Enamangalam. Copies of the documents referred to in S. 173 of the Code were furnished to the accused. And when axamined, he pleaded not guilty. The Additional First Class Magistrate upon a consideration of the said documents and the denial by the accused of commision of the offence, found the charge to be groundless and discharged him under S. 251-A (2), Cr. P. C. On appeal by the State, the District Magistrate, Cuddalore, differed form the addditional First Class Magistrate and was of the View that there was prima facie evidence to show that the accused was prima facie evidence to show that the accused was driving the car on the particular day and that the order of disharge was improper. But it was contended before him that the Districe Magistrate had no jurisdiction under Ss. 435 and 436 of the Code to direct the Additional First Class magistrate to dispose of the case afresh, as the order of discharge, in effect, amounted to one of acqittal. If this view of th effect of the order of discharge under S. 251-A is correct, it is not disputed that the District Magistrate will have no power to order re-trail.

(3.) THE question, therefore, is whether when an order is made under sub-sec. (2)of S. 251-A, the proceeding upto that stage is in the nature of an inquiry or a trial. The answer will depend upon the construction to be placed upon the words "at the commencement of the trial" in sub-s. (1) of S. 251-A. That sub-section states that in a case istituted on a police report, the Magistrate, when the accused appears or is brought before him at the commencement of the trial, shall satisfy himself that the documents referred to in S. 173 have been furnished to the accused, and if not, shall cause them to be so furnished. That next sub-section directs that if, on aconsideration of all the documents referred in Sec. 173 and making such examinations, if any, of the accused as the Magistrate thinks necessary, and after giving the prosecution and the accused an opportunity to be heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. Sub-section (3) is to the effect that if the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence, triable as a warrant case, and that he is competent to try it and adequately punish the accused, he shall frame a charge against the accused. The charge then shall be read out and explained to the accused and he be asked whether he is guilty or claims to be tried. If he pleads guilty, a conviction may follow. If the accused claims to be tried, the Magistrate should, on the date fixed for the purpose, take all such evidence as may be produced in support of the prosection which is subject to cross examination by or on behalf of the accused. The accused shall then enter upon his defence and produce his evidence. The accused is also given liberty to summon such witness, as he may like, for further cross-examination. If, after the evidence has been taken, the Magistrate finds the accused not guilty, he will record an order of acquittal. This in brief is the rest of the procedure indicated by sub-secs. (3) to (11) of S. 251-A. It may be remembered that this is one of the new sections introduced by Act XXVI of 1955 with the avowed object of simplifying and shortening the procedure with a view to expendition in procedure adopted by the amended provision for trial of warrant cases is that no evidence, unlike in a case arising out of a private complaint, is taken before a charge is framed. This difference is evident from a comparison of sub-sec. (1) of S. 251-A with Subsec. (1) of S. 252 of the Code. If upon taking evidence under S. 252 (1) and examining the accused, the Magistrate finds that no case against the accused has been made out the Magistrate shall discharge him. In such a case, upto htat stage, the proceedings is in the nature of an enquiry and not a trial. The trial shall, as apparent form a number of sections in the Code, commence with the framing of a charge and it is hardly necessary to cite authorities in support of the proposition. It has to be seen whether it is the intention of sub-sec. (1) of S. 251-A to depart from that principle and amke the proceeding preceding a discharge under sub-sec. (2) partake the nature of a trial. The words