MARTA SILVA Vs. PIEDADE CARDOZO

JUDGEMENT

(1.) The short question for consideration in references nos. 2 and 4 of 1968 made by the learned Sessions Judge, Panjim, Is whether for the purposes of Sections 263, 264 and 414 of the Code of Criminal Procedure, (hereinafter referred to as 'the Code') the sentence passed or authorised, in cases tried summarily, is a decisive consideration.

(2.) The material facts in reference No. 2 are that the respondent Maria Santana Almeida and two others were tried summarily by the learned Magistrate, Quepem, for an offence under Section 323 of the Indian Penal Code. The learned Magistrate found that there was no evidence to convict the respondent Maria Santana Almeida, but, as regards the other two respondents, they were convicted under this section and sentenced to pay a fine of Rs. 25/- or, in default, to undergo S. I. for 3 days. The respondent Maria Santana Almeida was acquitted. The facts in reference No. 4 are that respondent Dumentina Caetano Cardozo was tried summarily for an offence under Section 427 of the Indian Penal Code. The same Magistrate convicted her under this section and sentenced her to pay a fine of Rs. 50/- or, in default of payment of fine, to undergo S. I. for 15 days. The learned Sessions Judge was moved in revision, on behalf of the respondents in these two cases, against the convictions recorded. He accepted the revision petitions principally on the ground that the learned Magistrate should have recorded the substance of the evidence as required by Section 264 of the Code, and that omission to do so vitiated the trials held and accordingly he recommended that the convictions and sentences may be set aside and the cases remanded to the learned Magistrate for being tried again. In arriving at this conclusion he was influenced by the consideration that as the sentences authorised under Sections 323 and 427 of the Penal Code are imprisonment or fine exceeding rupees two hundred, therefore, Section 264 was applicable, and this provision being mandatory in nature, the learned Magistrate was bound to record the substance of the evidence. In another reference No. 1 of 1968, made by the same Sessions Judge, my learned brother, sitting singly, after considering the decisions cited at the Bar, held, in agreement with the Sessions Judge, that for the purposes of Sections 263, 264 and 414, the decisive consideration is the sentence authorised for the offences enumerated in Section 260(1) of the Code, and not the sentence passed for these offences. This decision is - Antonio Vicente Fonseca V/s. State ,1968 AIR(Goa) 81 The references Nos. 2 and 4 of 1968 involve an important question of law. A Division Bench is constituted to consider that question.

(3.) It is necessary, in the first place, to take a bird's eye view of the relevant provisions of the Code in order to appreciate the points raised in these references. Chapter XXII of the Code relates to summary trials. The opening Section 260(1) enables - (a) the District Magistrate, (b) any Magistrate of the first class specially empowered in this behalf by the State Government, and (c) any Bench of Magistrates invested with the powers of a Magistrate of the first class and specially empowered in this behalf by the State Government, if he or they think fit, to try in a summary way all or any of the offences enumerated therein. The offences enumerated are :-