Decided on August 06,1958

Austin Henry Rufus Appellant
STATE Respondents


G.MEHROTRA,J. - (1.)THIS is a revision on behalf of Austin Rufus who has been convicted by the Magistrate under Sections 338 and 279 of the Indian Penal Code and sentenced to six months' rigorous imprisonment under Section 338 and to pay a fine of Rs. 100/ - in default two months' rigorous imprisonment under Section 279, Indian Penal Code.
(2.)THE prosecution case briefly against the applicant is that on 25 -12 -1956 at about 7 -30 A. M. at Margheritabazar, he was driving a jeep No. WGU -926 rashly and negligently so as to endanger human life and fell into a nulla causing some grievous injury to himself and simple injury to Mrs. Chinthia Rufus, wife of his brother. In the jeep, there was the, applicant's brother Alfred Rufus and his two young children. On these facts, the applicant was sent up for trial under Sections 338 and 279, Indian Penal Code.
The Magistrate, on the receipt of the police report, fixed 5 -4 -1957 for the production of the accused and ultimately he appeared on 16 -5 -1957 and was allowed to be released on bail. On 15 -6 -1957, the next date fixed for hearing, the magistrate after perusal of the police diary framed charge under Section 279 and Section 338, Indian Penal Code against the applicant and he was asked to make a statement. Thereupon the accused pleaded guilty to the charge.

His statement was recorded by the magistrate and he was convicted on his admission of guilt under Section 338 and Section 279 of the Indian Penal Code. On appeal to the Sessions Judge, the conviction was upheld although the Sessions Judge seems to be of the opinion that the framing of the charge was not justified on the materials. Under Section 412, Criminal P. C. in appeal, he could only interfere to the extent 9f the legality of the sentence awarded. He therefore reduced the sentence and upheld the conviction of the applicant.

(3.)IN revision before me, it is contended by the counsel for the applicant that this Court can examine the merits of the case under Section 439, Criminal Procedure Code. There is no bar to this Court examining the merits of the case and finding out for itself whether the charge is supported by any evidence or not. It appears in the present case that no witness was examined in court. The magistrate followed the procedure laid down under Section 251A (3) of the amended Criminal Procedure Code and framed the charge against the applicant. This sub -section provides as follows:
'If upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the magistrate is of opinion that there is ground for presuming that the accused had committed an offence triable under this chapter, which such Magistrate is competent to try and which in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.' The contention is that if the magistrate had examined the documents referred to under Section 173 of the Criminal Procedure Code, he could not have formed an opinion that any charge could be framed against the applicant. From the police report and from the statements recorded by the investigating officer, a copy of which is supplied to the accused, it will appear that five witnesses were examined by the police. Out of these five witnesses, three of the witnesses are not in a position to state under what circumstances the incident happened. They are also not in a position to state if the applicant himself or his elder brother, who was also inside the jeep was driving. The other two witnesses were the brother of the applicant and his wife. They have both stated that Mr. Alfred Rufus was driving the jeep. Under the circumstances, it cannot be said that the material before the magistrate was sufficient to frame the charge against the applicant. Apart from this question, this Court can examine the materials and find out if the conviction is justified on materials even if it is based on admission of the guilt. This power will have no meaning unless this Court can examine the materials and come to the conclusion whether the materials were such as to warrant the conclusion of guilt. The statement of the accused admitting the guilt is no evidence against him. If the Court is satisfied that the Magistrate could not come to the conclusion that the applicant was guilty under Sections 279/383, there is no bar to interfere with that finding under the revisional Dowers, even if there was an admission of the guilt. This point has been considered by more or less all the High Courts in India.

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