( 1 ) THIS reference is preferred by the court of Sessions Judge Rajkot District Rajkot in Criminal Revision Application No. 19 of 1971 of his file which was preferred by accused Chhotu Bhagirath who was one of the two accused persons convicted by the Special Judicial Magistrate First Class (Railways) Rajkot in Criminal Case No. 408 of 1971 under sec. 120 (b) of the Indian Railways Act. The learned Magistrate is found to have imposed a fine of Rs. 25/for the said offence and has further ordered that in default of the payment of the fine the accused shall undergo S. I. of one week. Originally the accused had filed an appeal before the learned Sessions Judge but this appeal was converted into revision. In the appeal memo the accused has made a grievance that his conviction under sec. 120 (b) of the Indian Railways Act was not justified as he was a Railway Servant. For this proposition the accused relied upon the decision given by a Division Bench of the Bombay High Court in Gurunath Shankar Godkhindi v. Emperor A. I. R. 1937 Bombay 357 wherein it is held that sec. 120 of the Railways Act is not intended to include any act done by a railway servant acting as such. The learned Sessions Judge who has made this reference has however found that this decision is not applicable to the facts of the case because there is nothing in the record to show that the accused was a railway servant at the relevant time. But the learned Sessions Judge has preferred to make this reference on the ground that the plea of the accused is not recorded by the learned Magistrate as contemplated by sec. 243 of the Criminal Procedure Code.

( 2 ) I have perused the original record of the learned Railway Magistrate. It is found that the allegation against the accused was that at the time of the incident the accused had indulged in abuses and altercation which would interfere with the comfort of other passengers. Sec. 120 (b) of the Railways Act contemplates an offence of the commission of nuisance or act of indecency or the use of obscene or abusive language. Sec. 120 (c) contemplates the offence of interfering without lawful excuse with the comfort of any passenger. When the accused was brought before the learned Railway Magistrate following question was put to him:-THE complaint is read over to you. Do you want to show cause why you should not be convicted for an offence under sec. 120 (b) of the Indian Railways Act. BELOW this question is recorded the plea of the accused as under :- both plead guilty. It should be recalled here that during the course of the trial the accused was accused No. 2 while his co-accused Manharlal Girdharlal was accused No. 1. The trial of the accused was as in a summons case and therefore this was a case which was governed by the provisions contained in Chapter 20 and 22 of the Criminal Procedure Code. The learned Sessions Judge is of the opinion that the manner in which the learned Railway Magistrate has recorded the plea of the accused is not in accordance with the law and therefore the whole trial should be treated as vitiated and a retrial of the accused should be ordered.

( 3 ) I find good deal of substance in the reference because it is evident that the learned Judicial Magistrate who has tried this case has not observed the mandatory provisions of law as contained in sec. 243 of the Criminal Procedure Code which is found in the following terms:-IF the accused admits that he has committed the offence of which he is accused his admission shall be recorded as nearly as possible in the words used by him and if he shows no sufficient cause why he should not be convicted the Magistrate may convict him accordingly. THIS section provides that if the accused admits that he has committed the offence his said admission should be recorded by the Magistrate as nearly as possible in the exact words used by him. If the Magistrate fails in doing so then obviously he does not provide any record to the appellate or the revisin