- (1.) THIS is a reference made by the District Magistrate Kotah which arises under the following circumstances.
(2.) MATHURALAL filed a complaint against Hira in the court of the Sub Divisional Magistrate, Kotah under sec. 326 read with sec. 511 of the Indian Penal Code and the complaint was transferred by that court to the court of the Extra Magistrate, Kotah. The Extra Magistrate, proceeded with the inquiry in this case in the manner provided in Chapter 21 of the Criminal Procedure Code taking the case to be a warrant case. After the evidence of the prosecution had been recorded, the Magistrate examined the accused and on the 24th of December, 1951, the Magistrate came to the finding that the case made out by the prosecution evidence was one under sec. 352 only and that the case under sec. 326 read with sec. 511 was not made out. On that day, the complainant was absent and the Magistrate dismissed the case for default under sec. 247 of the Criminal Procedure Code and acquitted the accused. A revision was filed against the said order of the Extra Magistrate in the court of the District Magistrate Kotah who had made this reference. In the opinion of the District Magistrate it was not open to Extra Magistrate to convert the proceedings from Chapter XXI of the Criminal Procedure Code to those under Chapter XX of the Criminal Procedure Code. The Magistrate, according to him, should have continued to proceed with the trial of the case as a warrant case. He has recommended that the order of the Magistrate should be set aside and direction should be issued to the Magistrate to proceed with the trial of the case from the point he had left. The question which arises in this case is whether when the proceedings in a case are started under Chapter XXI of the Criminal Procedure Code, it is open to the Magistrate to convert those proceedings those under Chapter XX of the same Code if in the opinion of the Magistrate, the case made out against the accused is one which would fall within the scope of Chapter XX. This very point came up for decision before this Court in Mst. Manni vs. Ramakishan (1 ). A number of authorities were discussed in that case and it was held that if the accused is not prejudiced thereby it is necessary for a Magistrate to change the trial of the accused from one under Chapter XXI to Chapter XX of the Criminal Procedure Code. Reliance was placed in that case on the judgment in Venkatarama Iyer vs. Sundram Pillai (2) which followed the decision in Queen Empress vs. Papadu (3 ). A few cases which held a contrary view were also considered in that case and they were distinguished on the ground that in those cases by conversion of the proceedings from warrant case to the summons case a prejudice was caused to the accused persons. Attention of this Court has also been drawn to the decision of this Court in Partap Singh vs. Govinda (4) wherein it has been observed that - "if a Magistrate starts a trial as if in a warrant case, then he cannot subsequently convert those proceedings into proceedings as in a summons case. " In that case, the Magistrate proceeded to hold an inquiry as if the case was a warrant case and after taking the prosecution evidence, examined the accused and recorded the defence evidence and without framing any charge convicted the accused persons. The accused in that case were deprived of an opportunity to re-cross-examine the prosecution witnesses. It was argued in that case that the offence of which the accused persons were convicted was of the nature of a summons case, and consequently the accused were not entitled to recross-examine the prosecution witnesses and the conviction ordered by the Magistrate was, therefore, proper. It was held by this Court that the Magistrate was not competent to convert the proceeding from that of a warrant case to the summons case under these circumstances. That case is distinguishable for in that case it was to the prejudice of the accused that the proceedings were converted from warrant case to the summons case inasmuch as the accused expected to re cross examine one of prosecution witnesses but they were deprived of this opportunity because of the change of procedure. It is evident that where prejudice is caused to the accused conversion of the proceedings from warrant case to the summons case cannot be permitted. In the present case no prejudice was caused to the accused and the aforesaid judgment, therefore, does not come to the help of the complainant. The facts of this case are similar to the facts of the case in Mst. Manni v. Ramakishan, (1) referred to above except that in that case a charge was framed against the accused persons and in the present case no charge was framed. This difference, however, is not material. In that case also, the Magistrate proceeded to act under section 247 after the framing of the charge holding that the case was of the nature of the summons case. Similarly in this case, the Magistrate held that the offence made out was one falling under section 352 of the Indian Penal Code only and as such it was open to the Magistrate to proceed under section 247 of the Criminal Procedure Code. The Magistrate consequently recorded an order of dismissal of the case and acquitted the accused. It is not necessary to reproduce the discussion which has been contained in the judgment of this court in Mst. Manni's case. There appears no good reason to differ from the opinion expressed in that case which governs the point raised in this case and the facts of which are very similar to the facts of the present case. In view of the decision of this Court in that case, the reference does not appear to be proper. The reference is disallow. .;