MOHAMED ROSHAN Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal against a conviction under Section 457, read with Section 511, Indian Penal Code, by the Additional Presidency Magistrate, Mr. Thacker, who sentenced the appellant to one year's imprisonment. In the appeal it is alleged that the appellant was decoyed by a stranger to the place where he was arrested and wrongly accused of house-breaking and theft.

(2.) There is no record of the statements of the witnesses at the trial. Their names only are given, with an indication that they gave evidence and were, cross- examined. The Magistrate has thus failed to comply with the provisions If Sub- section (1) and (2) of Section 362, read with Section 411, Cr.P.C., for the sentence inflicted upon the appellant exceeded six months.

(3.) The learned Magistrate was asked why evidence had not been properly recorded as required by Section 362, Cr.P.C., and his explanation is that he was misled by the analogy of sending juvenile offenders to Reformatory Institutions for three years or more into thinking that the sending of a boy to the Dharwar Juvenile Jail is hot strictly speaking a sentence of imprisonment but of detention in a reformatory. He refers to the Government Rules which require a minimum sentence of twelve months rigorous imprisonment in such a case and accordingly he had to impose one year's imprisonment, but treated it as merely nominal. This explanation is not quite satisfactory because obviously the very description of the Dharwar Juvenile Jail as a Jail, and fact that a sentence of imprisonment has to be passed, clearly distinguishes the case from one in which a sentence of detention in a reformatory is passed under the Reformatory Schools Act. It may also be pointed out to the learned Magistrate that even in cases falling under Sub-section (4) of Section 362, the discretion which is allowed to a Presidency Magistrate not to record any evidence should be exercised reasonably, as has been pointed out by this Court in Emperor V/s. Harischandra Talcherkar,16 C. 300 : 8 Ind. Dec. (P.C.) 197 (F.B.).