NISARALI Vs. SECRETARY, MUNICIPAL COMMITTEE

JUDGEMENT

(1.) THIS case has been reported under Section 438, Criminal P.C. by the Sessions Judge, Nagpur. Nisarali, the applicant in the Sessions Court, was convicted by the Honorary Magistrate, 1st class Nagpur, of an offence under Section 183 of the Municipal Act and was sentenced to a fine of Rs. 5.As the Sessions Judge points out, no reasons whatever for the finding are given. All that is on record, which is to the point at all, is a note of inspection of the spot and in it the Magistrate seems to have relied on statements made to him by casual people he met there-statements apparently not made on oath.

(2.) I have, on previous occasions had occasion to point out that it is irregular, on such local inspections, to take into account the evidence of witnesses not recorded on oath. In this connexion, reference is invited to para. 4 of Judicial Commissioner's Criminal Circular No. 1-14.

(3.) THE defects which have occurred as shown in the Sessions Judge's report, in this case are fundamental and go to the root of the trial. They cannot, from any point of view, be regarded as curable irregularities. The conviction and sentence in question are therefore, set aside and the complaint case will be reheard and tried by such other first class Magistrate, stipendiary or honorary, in Nagpur as the District Magistrate may select therefor. The fine, if paid, will be refunded.