ANTONIO VICENTE FONSECA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a reference made by the Sessions Judge, Panaji, under Sec. 438 of the Criminal Procedure Code, hereinafter referred to as the Code, recommending that the order dated 29-4-1967 by which the Judicial Magistrate, First Class, Quepem, convicted Dr. Antonio Vicente de Fonseca under Section 427 I. P.C. and sentenced him to a fine of Rs. 100/-, or, in default, 30 days' simple imprisonment, be quashed and the case remanded to the Court at Quepem for re-trial.

(2.) Dr. Fonseca and Julieta Candolina were tried summarily on the charge under Section 427 read with Section 34 of the Indian Penal Code. Julieta Candolina was acquitted and Dr. Fonseca convicted and sentenced in the manner indicated above. Dr. Fonseca felt aggrieved and so filed a revision petition in the Court of Sessions Judge at Panaji praying that the conviction and sentence be quashed. The learned Sessions Judge reached the conclusions that at the best the charge against Dr. Fonseca fell under Section 427 read with Section 114 I. P.C. and since he had been charged under Section 427 read with Section 34 I. P.C. the conviction was unsustainable, that the trial court flouted the provisions of Section 264 of the Code by not recording the substance of evidence in the case and so the trial was vitiated, and that the Court had also committed the irregularity of not mentioning in the judgment on what material he had founded the verdict of guilty. The judgment of the trial court, the Sessions Judge held, contains mainly the conclusions, apart from general observations, and so is faulty.

(3.) Shri Sonak, appearing for Dr. Fonseca, has urged two points for consideration in support of the contention that the trial had been invalidly held. In the first instance, it was pointed out that since the offence under Section 427 I. P.C. is punishable with two years' imprisonment the case against Dr. Fonseca was appealable within the meaning of Section 264 of the Code and as such it was obligatory on the trial court to record the substance of the evidence examined before it. That having not been done the trial stood vitiated. The second point emphasised was that at the conclusion of the prosecution evidence the statement of the accused under Section 342 of the Code was not recorded and hence the conviction and sentence cannot be maintained.