A trial conducted by a Magistrate without jurisdiction is illegal and cannot be cured by Section 537 of the Criminal Procedure Code.

ORDER :- The petitioners - Shanu Raghu Datkar and four others were convicted by the learned Magistrate, Bicholim, of the offences under sections 143, 447 and 379 of the Indian Penal Code and sentenced to undergo R. I. for two months and a fine of Rs. 100 and in default of payment of fine, to undergo R. I. for one month. The sentences were directed to run concurrently. They preferred an appeal against the decision of the learned Magistrate. The learned Sessions Judge agreed with the learned Magistrate that the petitioners had formed an unlawful assembly, that they trespassed into the land in possession of the complainant; and that they committed theft of the jackfruits valued at Rs. 2. The defence of the petitioners was that the land had been mortgaged by their ancestors some years back with Alfredo Botelho; that they wanted to get back the land on payment of the mortgage loan; and that they had a right to the possession of the land.

This defence was not believed by the learned Sessions Judge and for good reasons. He also overruled an objection urged on behalf of the petitioners that the trial was vitiated. The petitioners were tried by the Magistrate who had power to try these offences summarily. He was succeeded by another Magistrate before he could give judgment. This Magistrate had no summary powers. He considered the substance of the evidence recorded by his predecessor and then recorded a judgment of conviction. According to the learned Sessions Judge the trial was not vitiated because of the protection of S.537 of the Criminal Procedure Code. In his opinion, "Sec. 537 of the Criminal Procedure Code cures irregularities committed by Courts having jurisdiction to try a case. The question to be decided therefore is whether want of powers to try a case summarily under Section 260(1) of the Criminal Procedure Code, is want of jurisdiction within the meaning of Section 537 Criminal Procedure Code. My answer to the question is in the negative." In the view taken by him, the appeal was dismissed. The petitioners felt aggrieved and hence the present petition in revision under S.435 and S.439 of the Criminal Procedure Code.

2. Shri J. Dhond, learned counsel for the petitioners, argues that Section 537 of the Criminal Procedure Code is not attracted in this case as erroneously held by the learned Sessions Judge. According to him this is not a case of an irregularity but an illegality which goes to the root of the matter. It is necessary to examine the relevant provisions of the Code before considering this argument. It is not in dispute that the offences under these sections are triable summarily in view of the provisions of Section 260 of the Code. It is also not in dispute that up to the stage of the judgment the learned predecessor of the convicting Magistrate recorded the substance of the evidence. It is common ground that the convicting Magistrate had not been vested with summary powers. These powers are to be expressly conferred by the Government.

Under Section 264 of the Code, in every case tried summarily by a Magistrate in which an appeal lies, such Magistrate shall record the substance of the evidence and also the particulars mentioned in Section 263 and shall, before passing any sentence, record a judgment in the case. The case tried summarily was appealable in this case. This section was substituted in place of the old section by the Code of Criminal Procedure (Amendment) Act 26 of 1955. The effect of the amendment is that the Magistrate is required to record the substance of the evidence while before the amendment, he was required to record a judgment containing the substance of the evidence and a separate record of the evidence was not necessary. That there has been compliance with this section as amended is not in dispute. It will be noticed that the emphasis is on the words "such Magistrate" in the section and this is not without significance. The words used are to be given the necessary effect intended by the legislat

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