Non-compliance with legal provisions of the Criminal Procedure Code led to the setting aside of the conviction and remand for retrial.

ORDER : This is a reference made by the learned Sessions Judge under Section 438 of the Code of Criminal Procedure recommending that the conviction and sentence of accused Vithol Porobo Dessai be set aside and the case remanded to the lower Court for proceeding according to law.

2. The facts broadly stated are that the accused is alleged to have beaten the complainant Premavati Porbina Dessai with a stick on 6th of January, 1967. The complainant filed a complaint in the Court of learned Magistrate, Quepem on 12th January 1967. The learned Magistrate tried the case summarily and thereafter convicted and sentenced the accused under S. 323 of I. P. C. to pay fine of Rs. 25 or in default to undergo simple imprisonment for 5 days. The accused moved the learned Sessions Judge in revision because of irregularity or illegality committed in this trial. The learned Sessions Judge after hearing the accused made a reference to this Court as stated above.

3. The grounds in support of this reference are:

(1) that the complainant was examined in absence of the accused on 20th January 1967;

(2) that the particulars of offence under Section 323 of the Penal Code were not mentioned to the accused except reference was made to this section, and therefore there was no compliance with the provision of Section 242 of the Code.

(3) that the requirements of Section 263 of the Criminal Procedure Code were not complied with.

4. As regards the 1st ground the complainant was examined on 20th January 1967 in the absence of the accused.

This is a serious objection affecting the legality of the trial. As regards the 2nd ground there was also no compliance with the provision of Section 242 of Cr. P. C. As regards the 3rd ground Shri Kudchodkar, learned Counsel for the accused, invites my attention to the following observations of the High Court of Allahabad in 'Ram Saran Singh v. Prithipal Singh', AIR 1950 All 224, in support of his contention that there was no compliance with Section 263, Cr. P. C. :-

"The record of the summary proceedings prepared by the Magistrate shows that he only mentioned the sections under which the persons had been prosecuted. He did not anywhere mention the particulars of those offences. The law requires facts constituting those offences to be recorded.................... Finally he did not comply with the provisions of Clause (h) of Section 263 which requires that in the case of a conviction the record must contain a brief statement of the reasons therefor. In this case the record prepared by the Magistrate merely contains two sentences purporting to contain the statement made by one B. K. Chaturvedi, examined as a prosecution witness and one sentence purporting to contain the evidence of Harish Chandra defence witness."

It appears from the judgment of the learned Magistrate that beyond recording the finding of conviction, he did not even briefly state the reasons in support of conviction. There was no compliance with Clause (h) of Section 263, Cr. P. C. The accused was also not examined as required by Clause (g) of this section. What this Clause requires is not only the plea of the accused but also his examination should be recorded. The accused in his examination may have given his own version of the incident or he may have even pleaded alibi.

5. In view of the non-compliance with the aforesaid provisions of law and also in view of the fact that the provisions of Section 537, Cr. P. C. are not attracted in this case, the reference made by the learned Sessions Judge is accepted and the conviction or the accused is set aside and the case remanded to the lower Court for retrial according to the provisions of law. The reference is supported by the learned Government Pleader.

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