IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Crl.Rev.Pet.No. 214 of 2002() ------------------------------------------ CRA.26/1998 of II ADDL. SESSIONS COURT, PALAKKAD CC.44/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------- RAMAKRISHNAN, S/O. BALAN NAIR, KODANGIL VEEDU, MELMURI, PARAKKAD,AMAYOOR. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): RESPONDENT/COMPLAINANT ---------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE S.I. OF POLICE, PATTAMBI. PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.10.2008, THE COURT ON 13/11/2008 PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No.214 of 2002 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 13th day of November, 2008 O R D E R -------------- Revision petitioner faced trial in the court of learned Judicial First Class Magistrate, Pattambi in C.C. No.44 of 1998 for offences punishable under Sections 353 and 342 read with Section 34 of the Penal Code (for short, “the Code”). For the trial, the procedure prescribed for summary trial was followed. Learned magistrate while pronouncing judgment on 27.2.1998 thought and observed in paragraph 26 of the judgment that considering the nature of the offence committed by the revision petitioner, “this court is inclined to convert this case from S.T. to C.C. and re-numbered as C.C. No.44 of 1998 with a view to impose maximum sentence on the accused”. Observing so, revision petitioner was found guilty of having committed the offences alleged by the prosecution. He was sentenced to undergo simple imprisonment for two years and payment of fine of Rs.3,000/- under Section 353 of the Code and to undergo simple imprisonment for one year and payment of Rs.1,000/- under Section 342 of the Code. Revision petitioner challenged the conviction and sentence in appeal. Learned Sessions Judge CRL. R.P. No.214 of 2002 -: 2 :- found that an illegality was committed by the learned magistrate in not following the procedure prescribed under Section 260(2) of the Code of Criminal Procedure (for short “Cr.P.C.”) that trial is vitiated by that illegality, set aside the conviction and sentence and remitted the case to the court of learned magistrate for fresh evidence as indicated in Section 260(2), Cr.P.C. That judgment is under challenge. Learned counsel for the revision petitioner contended that since the trial itself is vitiated, revision petitioner ought to have been acquitted of the charges made against him. 2. Section 260 Cr.P.C. confers power on the Chief Judicial Magistrate or any Magistrate of the First Class to try cases of the nature mentioned therein, following the procedure for summary trial. It is not disputed that the case on hand is one coming within the category of Section 260(1), Cr.P.C. Sub-section (2) of that Section states that “when in the course of a summary trial it appears to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witness who may have been examined and proceed to re-hear, the case in the manner provided in this Code”. Evidently, it was not following that procedure that the learned magistrate after conclusion of trial and while pronouncing judgment convicted and sentenced the revision CRL. R.P. No.214 of 2002 -: 3 :- petitioner. That illegality vitiated the conviction and sentence and it is therefore, that the learned Sessions Judge set aside the conviction and sentence and remanded the case for fresh disposal. 3. Section 260(2), Cr.P.C. requires that when in any case where trial is conducted following the procedure for summary trial the magistrate thinks that it is undesirable to try the case summarily, the magistrate shall “recall any witness who may have been examined and proceed to re-hear, the case in the manner provided by this Code”. In Section 319, Cr.P.C. which deals with power of the court to proceed against any person not being an accused also it is stated that where the court decides to proceed against any such person not being an accused, proceedings in respect of such person shall be commenced afresh and “witnesses re-heard”. Therefore, it is clear that re-hearing of the witnesses contemplated in Section 260(2), Cr.P.C. means fresh examination of witnesses. The reason is that under Section 264, Cr.P.C. in every case tried summarily in which the accused does not plead guilty, the magistrate need only record the substance of the evidence and pronounce a judgment containing a brief statement of the reasons for the finding. Section 326, Cr.P.C. deals with conviction or commitment on evidence partly recorded by one magistrate and partly by another. Sub-Section (3) of the Section says that nothing CRL. R.P. No.214 of 2002 -: 4 :- in the section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior magistrate under Section 325. In other words, when a case is tried summarily, judgment has to be pronounced by the same magistrate who tried the case and recorded the evidence. Reason is that as stated in Section 264, Cr.P.C. the magistrate while trying the case summarily may not have recorded the entire evidence but only the substance of the evidence of the witness. It leaves me in no doubt that while the case tried summarily is converted into C.C. case, it is necessary to recall and examine the witnesses afresh and record their evidence in the manner provided in the Cr.P.C. The word 're-hear' occurring in Section 260(2), Cr.P.C. must be understood as meaning examination of witnesses afresh. 4. The mere fact that at the time of pronouncement of judgment the case was converted as CC case did not mean that the case should end in acquittal. Learned Sessions Judge therefore set aside the conviction and sentence and remitted the case to the court of the learned magistrate to recall the witnesses and re-hear them as provided under Section 260(2), Cr.P.C. I find no reason to interfere with the judgment of the learned Sessions Judge. Revision Petition fails and it is dismissed. Revision Petitioner is CRL. R.P. No.214 of 2002 -: 5 :- directed to surrender in the court of Judicial First Class Magistrate, Pattambi on 31.12.2008. Criminal Miscellaneous Petition No.1609 of 2002 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.214 OF 2002 =================== O R D E R NOVEMBER, 2008