- (1.) THE Munsif Magistrate at Hindaun convicted the accused Chakrapani of an offence under section 228 Penal Code and sentenced him to a fine of Rs. 200/- on the 19th of April, 1949, after a summary trial under section 480 Cr. P. C. THE Additional Sessions Judge Gangapore, on appeal by the accused on the 17th of September, 1949, reduced the fine from Rs. 200/- to Rs. 100/-, but upheld the conviction. THE accused has now filed this revision application against the order of the Additional Sessions Judge, Gangapore.
(2.) THE facts of the case, briefly speaking, are that in a civil case which was pending in the court of the Munsif Hindaun, the court inspected the site of the disputed property on the 19th of April 1949, when at the time of the inspection both the parties quarrelled and it is said that the accused used such language was as considered derogatory for the Munsif. THE accused was thereupon arrested and after a summary trial convicted on the same day. The learned advocate for the accused has argued that the Munsif did not record the statement of the accused which it was obligatory for him to take. It may be pointed out that under section 481 (1) Cr. P. C. , it is provided that "in every such case the Court shall record the facts constituting the offence, with the statement (if any) made by the offender, as well as the finding and sentence. "in a summary trial under section 480 Cr. P. C. it is not necessary for a court to record the statements of witnesses, but it is binding on the court to record the statement of the accused if he makes any. In the present case, the Munsif did record the statements of three prosecution witnesses, but he has failed to take down the statement of the accused. The Additional Sessions Judge has observed in his judgment that the accused refused to make a statement, but this is not supported by the record of the case. Nowhere does it appear in the record that the accused refused to make a statement. It cannot be supposed under the circumstances that the accused did not want to make a statement. It has been held in A. I. R. 1940 Bom. , 314, that the accused is prima facie prejudiced if no statement is taken at all, and failure to comply with the provisions of section 342 Cr. P. C. would vitiate the trial if the court is satisfied that the failure to comply with the strict terms of the section has caused prejudice to the accused. In the present case, when the statement of the accused was not recorded at all, it cannot be said that the accused was not prejudiced. The trial of the accused in this case has therefore become vitiated, and the defect is not curable by section 537 Cr. P. C. The Government Advocate has prayed that retrial may be ordered. The accused had to remain in judicial lock-up for about 7 days for non-payment of fine, and he had to fight his case in both the courts below. This in itself constitutes sufficient inconvenience in a petty case like this. It is therefore not necessary to order a retrial. This revision petition is therefore accepted, and the accused is acquitted. The fine, if paid, shall be refunded. .;