STATE OF MAHARASHTRA Vs. TANAJI BAJIRAO BHOSALE

JUDGEMENT

(1.) This appeal raises a question of law regarding the two scopes of section 190 and 191 of the Criminal Procedure Code. The question arises on the following facts which are in dispute : On January 10, 1974, the Judicial Magistrate, First Class, Phaitan received a charge-sheet submitted by the police against the respondents. In the charge-sheet it was mentioned that between April 23, 1973, and June 12, 1973 the accused demolished the public road of 420 feet in length and 15 to 20 feet in breadth which was passing by the said of complainants land bearing Survey No. 104 and that portion was filled up by the accused with earth. With the result, the public road which existed for the last 50 years was converted so that it became a part of the respondents land and further put obstructions of stones on both the sides in order to prevent persons using the road. It is almost stated that the accused thus obstructed the complainant from going to his land from April 23, 1973, and thereby committed offences punishable under sections 447 & 341 read with sections 34 of the Indian Penal Code. The same day on which the charge-sheet was received, the learned Magistrate issued process under sections 447 and 341 read with section 34 of the Indian Penal Code against the accused. The learned Magistrate commenced to try the case in a summary way and followed the procedure for summary trials. Accordingly, the learned Magistrate framed two charges under section 441 read with section 34 and 341 read with section 34 of the Indian Penal Code. The particulars of the aforesaid charges were then read over and explained to the accused and the plea of the accused was recorded on January 16, 1975. All the accused pleaded not guilty. On April 1, 1975, the evidence of the complainant, Jayaram Subhedar Kadam, who had lodged the complaint at the police station was recorded. Thereafter, on September 15, 1975, the learned Magistrate framed a charge under section 431 read with section 34 of the Indian Penal Code against the accused. In the charge it was alleged that the accused has destroyed the public road in question merging it in the land of the accused. The offence punishable under section 431 of the Indian Penal Code being triable as a warrant case the learned Magistrate followed the procedure prescribed in Chapter 191 of the Criminal Procedure Code. In their statements the accused admitted having received the relevant police papers and when the charge was read over and explained to them they pleaded not guilty. These statements of the accused were recorded on the very day i.e. on September 15, 1975. As a fresh charge was framed against the accused the learned Magistrate recorded the evidence of the complainant again. The evidence of his witnesses was also recorded thereafter. After the prosecution evidence was over all the accused were duly examined under section 313 of the Criminal Procedure Code.

(2.) On a consideration of the evidence the learned Magistrate found the accused guilty under section 431 read with section 34 of the Indian Penal Code and sentenced one of each them to suffer rigorous imprisonment for six month and to pay a fine of Rs. 500/-, in default to suffer rigorous imprisonment for two months.

(3.) This conviction was challenged by the accused in appeal preferred by them in the Sessions Court at Satara. At the hearing of the appeal before the learned Additional Sessions Judge, Satara, it was urged on behalf of the accused that having regard to the fact that a new charge under section 431 read with section 34 of the Indian Penal Code was framed in the midst of a trial and the earlier charges framed against the accused under section 441 read with sections 34 and 341 read with section 34 of the Indian Penal Code having been abandoned, they were impliedly acquitted of those charges and the acquittal on those charges could not be reopened in appeal. It was then contended that having regard to the fact that the original charge-sheets submitted by the police was for offences under sections 447 and 341 read with section 34 of the Indian Penal Code and in trial an altogether new charge under section 431 read with section 34 of the Indian Penal Code having been framed, the cognizance taken by the learned Magistrate in respect of the later charge would be under section 190(1)(c) of the Criminal Procedure Code and as the Magistrate failed to follow the mandatory provision of section 191 of the Criminal Procedure Code, the trial was vitiated and the accused were entitled to acquittal. Relying on a decision of the Madras High Court in (Rajaratnam Pillai v. Emperor) A.I.R. 1936, page 341 the learned Additional Sessions Judge held that when the Magistrate has taken cognizance of a new offence under the provisions of section 190(1)(c) it was his bounden duty to afford the accused an opportunity to say whether he should be tried or not to be tried by the same Magistrate. The learned Judge held that the failure of the Magistrate to give an opportunity to the accused to say whether they should by tried by the same Magistrate or not, vitiated the entire trial and the order of conviction was required to be set aside.