Decided on March 26,1954


Referred Judgements :-


Cited Judgements :-



Shah, J. - (1.)The petitioner Naran Veljl is a boy about nine years old. On 28-2-1953, at about 4-15 p.m. he was knocked down by a motor vehicle driven by one Ranjitsingh Jamnadas Kapadia, Thereafter a complaint was lodged before the police against Kapadia charging him with having driven his motor vehicle rashly and negligently. The police treated the case as one of 'accident', and did not take any proceedings against the accused on the complaint. A private complaint was then filed in the Court of the Presidency Magistrate, 16th Court, Bombay, charging the accused with having committed offences under Sections 279 and 338, Penal Code. The learned trial Magistrate alter examining the complainant & two witnesses and after examining the accused passed an order on 17-11-1953, acquitting the accused. Against the order of acquittal passed by the learned trial Magistrate, the complainant has come to this Court in revision.
(2.)Normally, this Court does not interfere in its re visional jurisdiction with orders of acquittal passed by subordinate Courts. The Criminal P. C. provides for a right of appeal by the State against orders of acquittal, and when the State declines to prefer an appeal, this Court is unwilling to exercise its revisional jurisdiction except where a question of principle arises or it appears that manifest injustice has been done by disregarding statutory rules of fundamental importance in criminal trials. In my view interference by this Court is called for in this case because the learned trial Magistrate has maintained no record at all of the evidence and the plea of the accused. It 'is asserted on behalf of the accused that the learned Magistrate was not bound to maintain any record of the evidence and this Court in the exercise of its revisional jurisdiction is incompetent to review his discretion, even if there are no materials before, this Court which would enable it to adjudicate upon the contention of the complainant that there has been no real trial of the complaint filed by him. I have before me at page 11 of the paper book the entire record maintained by the learned Magistrate of the trial of this case. The record consists of the- name of the Court, the names of the parties, a statement setting out the numbers of the sections of the Penal Code under which the accused was charged, a statement that the accused pleaded not guilty, the names of the advocates for the parties, and is followed by :
"Naran Velji on S. A. Charge u/s. 279 and 338, I. P. C. Accused pleads not guilty. Naran Velji on S.A. Naran Velji on S. A. Velji shamji on S.A. ' Cross-examination declined. Ramji Vishram on S. A. . Accused examined u/s. 342, Cri P.C."
and is followed by the order of the learned Magistrate. There is no indication anywhere in the record as to what those hyphens occurring with uniform regularity following the names of the three witnesses are intended to convey.
(3.)Section 362 of the Criminal P.C. lays down as to what record shall be maintained by Presidency Magistrates in the trial of cases coming before them. Sub-section (1) of Section 382 requires a Presidency Magistrate in every case tried by him, in which an appeal lies, either to take down the evidence of witnesses with his own hand, or cause it to be taken down in writing from his dictation in open Court. Sub-section (2A) of Section 362 makes it obligatory upon the Magistrate to make a memorandum of the substance of the examination of the accused; and Sub-section (4) of that section provides that "in cases other than those specified in Sub-section (1) of the section, it shall not be necessary for a Presidency Magistrate to record the evidence or frame a charge". The effect of the provisions of Section 362 is that when a Presidency Magistrate takes up a case for trial he must make up his mind whether he would impose an appealable sentence if the accused is convicted; and if he is of the view that he would impose an appealable sentence, he la required by. Sub-section (1) of that section to maintain a record of the evidence given before him during the trial, and to maintain a memorandum of the substance of the examination of the accused. If the Magistrate comes to the conclusion that' even if the accused is convicted he would not impose an appealable sentence, under Sub-section (4) of Section 362 'it shall not be necessary for the Magistrate to record the evidence or frame a charge'. But evidently Sub-section (4) confers a discretion upon a Presidency Magistrate, in cases in which he is of the view that an appealable sentence may not be imposed upon the accused, not to record evidence or to frame a charge. The discretion required to be exercised by a Presidency Magistrate under Sub section (4) of Section 362 must of necessity be a Judicial discretion. Subsection (4) of Section 362 of the Criminal P. C. however does not confer upon a Presidency Magistrate an arbitrary license to record or not to record evidence according as he pleases. In a case which is so simple that it may be disposed of without any delay and on evidence which can be finished at a single hearing, a Magistrate may be Justified in not maintaining record of| evidence. But where either substantial questions of law or of appreciation of evidence arise or adjournments are necessitated and evidence of witnesses is heard after long intervals, a Magistrate would not normally be justified in refusing to maintain any record of evidence of the witnesses examined or to make a memorandum of the substance of the examination of the accused. The Legislature has not made the orders passed: by Presidency Magistrates final. , Under Ss. 433 and 439, Criminal P.c. this Court Is Invested with very wide revisional jurisdiction over the orders passed by subordinate Courts, be they Courts of Presidency Magistrates, or the Courts of Magistrates of First Class, Second Class, or Third Class, or the Courts of Session. The revisional Jurisdiction may be exercised by the High Court to test the correctness, legality or even the propriety of the finding, sentence or order of the subordinate Criminal Courts, or (or satisfying Itself as to the regularity of the proceeding of such Courts. It need hardly be said that the jurisdiction is intended by the. Legislature to be real, and can be effectively exercised only if the Courts below maintain a proper and adequate record of the trials before them as would enable this Court to satisfy itself as to the correctness, legality or propriety of the orders passed by them and as to regularity of the proceedings. Failure to maintain a proper record of the evidence in a case where some substantial question of law or of fact arises, or where the case has to be adjourned several times and evidence of different witnesses has been heard after long intervals, would in effect deprive this Court of its right to exercise its revisional Jurisdiction.

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