EMPEROR Vs. AMIRBI

JUDGEMENT

(1.) 1. Mt. Amirbi made a complaint against five accused who have been convicted and sentenced to a fine of Rs. 5 each under Sections 352 and 447, I. P. C. The Bench tried the case as a warrant case and realized during the proceedings that it was, as a matter of fact a summons case. They did not however correct the oversight as they stated: On account of this procedure the accused got an opportunity to cross-examine prosecution witnesses twice; the accused were thus not at all prejudiced. Taking this fact into consideration we did not start the trial afresh.

(2.) UNFORTUNATELY however the correct procedure in a warrant case has not been followed, and after the witnesses were recalled for their cross-examination after the charge, the Magistrates omitted to examine the accused anew. This omission is fatal to the trial since such examination under Section 342, Criminal P. C., must take place after the conclusion of all the evidence for the prosecution: vide Local Government v. Maria AIR 1925 Nag 44 and also it has been held by this Court in Mohammad Hayat Khan v. Emperor that this provision is imperative irrespective of the question whether the non-compliance has or has not prejudiced the accused on the merits of the case. On appeal the appellate Magistrate held that the proceedings were not vitiated as the ease was really a summons case in which there would be no charge and cross-examination of the witnesses thereafter, and consequently there was no material irregularity to the prejudice of the accused. The Sessions Judge has referred the case to this Court considering the appellate Magistrate's order incorrect. The order is certainly incorrect. When an inquiry has commenced as a warrant case the proceedings must continue as such, and the procedure of a summons case cannot be adopted to the prejudice of the accused although the case should have been tried as a summons case. Still loss can an actual grave omission in warrant-case procedure be construed as consonant with summons-case procedure. By the neglect to examine the accused on the conclusion of all the evidence against them the accused were deprived of the possibility of explaining the circumstances which appeared against them in that evidence, and the deprivation cannot be condoned by the argument that there should have been no charge or further cross-examination in consequence after it. To press the appellate Magistrate's argument to its logical conclusion all the cross-examination of the witnesses after the charge had been framed would have to be omitted likewise. It is clear that the-reference must be accepted and the conviction set aside. The case itself seems to be a petty one arising out of a revenue dispute. The accused went into the complainant's field and abused her. I do not consider that there is anything to be gained by ordering are-trial in this case. The conviction is set aside and the fines, if paid by the accused, will be refunded.