BABUSING JODHANSING JAMADAR v. STATE — 1968 DIGILAW 31 (GUJ)

N. G. SHELAT, J. ( 1 ) THIS appeal arises out of an order passed on 26-9-67 by Mr. B. N. Doctor City Magistrate 10 Court Ahmedabad in Summary Case No. 50 of 1965 whereby the appellant accused came to be convicted and sentenced to suffer rigorous imprisonment for seven days and to pay a fine of Rs. 100. 00 or in default to suffer further rigorous imprisonment for ten days for an offence under sec. 332 read with sec. 24 of the Indian Penal Code. tie is further convicted and sentenced to pay a fine of Rs. 100. 00 or in default to suffer rigorous imprisonment for ten days for an offence under sec. 323 read with sec. 34 of the Indian Penal Code. In respect of the other offences for which he came to be charged he has been acquitted. ( 2 ) ONE Shri Kantilal Bapalal Mody an advocate and a receiver appointed by the City Civil Court in Civil Suit No. 806 of 1968 filed a complaint Ex. 1 against the accused-appellant in respect of offences punishable under secs. 323 504 and 506 of the Indian Penal Code of the City Magistrate 10 Court Ahmedabad. The process was directed to be issued against the accused in respect of offences under secs. 504 and 506 Part I of the Indian Penal Code. Since the offences were triable under a summary procedure as contemplated in sec. 260 (1) of the Criminal Procedure Code the learned Magistrate followed the procedure contemplated in Chapter XXII of the Code. After recording the substance of evidence of some of the witnesses the learned Magistrate framed a charge Ex 5 against the accused in respect of his having committed offences punishable under secs. 332 323 and 504 of the Indian penal Code. In the alternative he was charged for the offences under secs. 332 and 323 read with sec. 34 of the Indian Penal Code. The same procedure was continued even thereafter and after considering the effect of the evidence adduced in the case found the accused guilty and sentenced him as stated above. Feeling dissatisfied with that order the accused has come in appeal ( 3 ) MR. 332 and 323 read with sec. 34 of the Indian Penal Code. The same procedure was continued even thereafter and after considering the effect of the evidence adduced in the case found the accused guilty and sentenced him as stated above. Feeling dissatisfied with that order the accused has come in appeal ( 3 ) MR. Trivedi the learned advocate for the appellant-accused contended that the summary procedure followed by the learned Magistrate in respect of the offences with which he came to be charged was not legal and that the proceedings therefore are liable to be quashed. Sec. 260 provides as follows :-260 (1) Notwithstanding anything contained in this Code - (a) any Presidency Magistrate (City Magistrate) (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . may if he or they think fit try in a summary way all or any of the following offences :- (A) offences not punishable with death imprisonment for life or imprisonment for a term exceeding six months;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In other words an offence punishable with imprisonment for a term exceeding six month cannot be tried by following the summary procedure contemplated in Chapter XXII of the Code. That is no doubt subject to clauses (b) to (m) set out therein. The offence under sec. 332 is punishable with imprisonment of either description for a term which may extend to three years or with fine or both. Since this offence does not fall under any of the clauses (b) to (m) and as the punishment for this offence is more than six months it cannot be tried following the summary procedure In the case. 332 is punishable with imprisonment of either description for a term which may extend to three years or with fine or both. Since this offence does not fall under any of the clauses (b) to (m) and as the punishment for this offence is more than six months it cannot be tried following the summary procedure In the case. While therefore at the early stage i. e. before the charge came to be framed by the learned Magistrate the summary procedure adopted by him may have been proper in view of the offences punishable under secs. 323 504 and 506 of the Indian Penal Code falling under clauses (e) to (j) of sub-sec. (1) of sec. 260 of the Criminal Procedure Code but once the learned Magistrate on the material before him decided to frame a charge also in respect of an offence under sec. 332 of the Indian Penal Code he could not have continued to proceed with the case following the same summary procedure. That would affect the accused in a considerable manner for he would otherwise get advantage of a regular trial in the case. A little carefulness would have spared the trouble of the accused having to face a retrial and also the public time ( 4 ) NOW sec. 53q of the Code is as under :-530 If any Magistrate not being empowered by law in this behalf does any of the following things namely : -. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (o) tries an offender summarily or. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . his proceedings shall be void. The learned Magistrate was as pointed out above not empowered by law to try any accused summarily in respect of any such offence under sec. 332 of the Indian Penal Code and if he therefore did so the proceedings in that respect have to be quashed as they are void. It would not be an irregularity curable under sec. 537 of the Criminal Procedure Code. 332 of the Indian Penal Code and if he therefore did so the proceedings in that respect have to be quashed as they are void. It would not be an irregularity curable under sec. 537 of the Criminal Procedure Code. The learned Magistrate had therefore committed a grave error In law in continuing the same summary procedure after his having framed a charge under sec. 332 of the Indian Penal Code. The mere fact that the two other offences such as falling under secs 323 and 504 of the Indian Penal Code were triable in the summary manner does not entitle or authorize him to try the accused in respect of other offences under sec. 332 of the Indian Penal Code by the same procedure. ( 5 ) IN those circumstances the entire proceedings in the case shall be quashed. The order of conviction and sentence passed by the learned Magistrate against the accused-appellant is therefore set aside. The fine if paid shall be refunded to the accused-appellant. ( 6 ) THE case shall be sent back to the Court of the Chief City Magistrate Ahmedabad who shall transfer it to be placed before any Magistrate other than the Magistrate who finally decided the case for disposal in accordance with law. ( 7 ) THE State of Gujarat has filed Criminal Revision Application No. 450 of 1967 for enhancement of the sentence passed against the accused in the case. In view of the order alreadly passed in this main appeal this application would not survive and stands dismissed. Case remanded .