K VIDYANAND, ACCUSED Vs. ERRAMMA COMPLAINANT

JUDGEMENT

(1.) BOTH these revisions are directed against the judgment of the VIIIth City Magistrate Hyderabad, dated 23rd May, 1960, finding the accused (petitioner in Crl. Revision Case No.512/60) hereinafter referred to as the accused, guilty of an offence under Section 323, Indian Penal Code, and sentencing him to pay a fine of Rs. 50/ -. Criminal Revision Case No.525 of 1960 has been preferred by the complainant in the case asking for enhancement of the sentence. The revisions arising out of the same judgment are heard together.

(2.) THE facts leading up to these revisions may be briefly noticed: On 31 -12 -1959 at about 6 p.m. the complainant (Petitioner in Crl. R.C. No.525 of 1960) hereinafter referred to as the complainant, went to the house of the accused for the purpose of asking him for the repayment of a loan previously advanced by her to the accused. The accused and his wife came out of the house, and the accused beat her with a ruler on the head, and on or around the thighs. A Police Constable had come there and took the complainant and the accused to the Police Station, where the complainant lodged a report, which, however, was treated as non -cognizable by the Police and so no further action was taken by them. Consequently, the complainant filed a private complaint on 11 -1 -1960 in the Court of the VIII City Magistrate. Her sworn statement was taken on 19 -1 -1960 and the case was taken on file only against the present accused under Section 323, Indian Penal Code. The evidence of the prosecution was commenced to be recorded on 18 -3 -1960. Four witnesses for the prosecution were examined. Subsequently, on 4 -4 -1960, defence witnesses 1 and 2 were examined on behalf of the accused. At this stage, the then presiding Magistrate was transferred and the successor took over the case and on 23 -5 -1960, the Magistrate heard the arguments and convicted and sentenced the accused as aforesaid.

(3.) TWO points have been urged by Mr. Chobe, the learned counsel for the accused. Firstly, that the conviction and sentence should be set aside and a retrial ordered in view of the fact that the Magistrate who passed the conviction and sentence had not heard the evidence in the case at all and that Section 350 of the Code of Criminal Procedure applied only to cases where at least a portion of the evidence had been heard and recorded by the Magistrate, who ultimately pronounced the finding and sentence. The second point taken is that the mandatory provision contained in Section 342, criminal Procedure Code, had not been complied with; and that the accused had not been questioned in accordance therewith on the conclusion of the prosecution evidence, and that the failure to comply with that provision vitiated the trial and therefore, the conviction and sentence passed by the Magistrate cannot be held to be valid and sustainable.