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Report No. 41

22.6. Section 262(2.-limit of sentence to be raised.-

Section 262(2) provides that no sentence of imprisonment for a term exceeding three months shall be passed on conviction in a summary trial. We recommend that this limit of three months be increased to six months. It is true that the object of the restriction in section 262(2) is to restrict the passing of sentence of considerable length in a summary trial, but an increase upto six months should not, in our view, be objectionable since every sentence of imprisonment is appealable.

Section 414 of the Code, as originally enacted, barred an appeal in a case tried summarily in which a sentence of imprisonment not exceeding 3 months or a sentence of fine not exceeding Rs. 200 was passed. That part of section 414 which related to imprisonment was omitted in 1923, and therefore every sentence of imprisonment or fine of over Rs. 200 is now appealable.

The record in a summary trial is no doubt less elaborate than that in a regular trial; but our recommendation that the substance of the evidence be recorded in all cases other than those where the accused pleads guilty will facilitate an effective scrutiny by a higher Court into the correctness of the Magistrate's order. In view of the fact that the scope of section 260(1)(a) is proposed to be widened so as to cover offences punishable with imprisonment upto one year, an increase in the maximum imprisonment which the court can award would also prove to be of practical use in some cases.

22.7. Amendment of section 262 recommended.-

Accordingly, section 262 may be amended so as to read as follows.-

"262. (1) In trials under this Chapter, the procedure prescribed for summons cases shall be followed except as hereinafter mentioned.

(2) No sentence of imprisonment for a term exceeding six months shall be passed in the case of any conviction, under this Chapter."

22.8. Sections 263 and 264.-

Sections 263 and 264 deal with the procedure to be followed in no.-appealable and appealable cases respectively. The main difference between the two is that, while in the former no evidence need be recorded, in the latter case the Magistrate has to record the substance of the evidence. The defect of this scheme is that procedure is made to depend on the result. In other words, if the need to record evidence is dependent on appealability, and appealability in turn depends on the sentence awarded, then the Magistrate has to decide on the guilt of the accused and sentence that should be awarded even before he has heard the evidence. This artificiality has led to some conflict1 in the interpretation of the words "in which appeal lies" appearing in section 264.

Another shortcoming of this scheme is that the right of revision against a. conviction and the right of an appeal against acquittal are rendered virtually ineffective in so far as the higher court cannot conduct a meaningful enquiry into the correctness of the trial court's order for want of a proper record of the case. This reason had prompted the Law Commission to recommend in an earlier Report2 that the substance of the evidence should form part of the record of the case in appealable and no.-appealable cases alike. We are also of the same view.

This change should not make any practical difference in the speedy disposal of summary cases as our investigation reveals that, even as it is, the Magistrates, due to the difficulty and undesirability of making up their minds on the ultimate result of the case even before they have heard the evidence, do take notes of the evidence during the examination of the witnesses to be later incorporated in the records, should an appealable conviction follow. It was also revealed that in a large number of summary trials the accused pleads guilty and the need to record evidence does not arise. We, therefore, recommend that the procedure to be followed in all summary trials should be the same irrespective of the result of the trial.

Section 263 expressly provides that no formal charge need be framed in a case where no appeal lies. Since we recommend that summons case procedure, in which there is no formal charge, be adopted in all summary trials, the words "or frame a formal charge" in this section can be deleted.

Accordingly sections 263 and 264 may be combined and recast to read as follows:

"263. In every case tried summarily, the Magistrate or Bench of Magistrates.... shall enter, in such form as the State Government may direct, the following particulars namely.-

(a) the serial number of the case;

(b) the date of the commission of the offence;

(c) the date of the report of complaint;

(d) the name of the complainant (if any);

(e) the name, parentage and residence of the accused;

(f) the offence complained of and the offence (if any) proved, and in cases coming under clause (b), (c), (d) or (e) of su.-section (1) of section 260, the value of the property in respect of which the offence has been committed;

(g) the plea of the accused and his examination (if any);

(h) the finding ;

(i) the sentence or other final order; and

(j) the date on which the proceedings terminated; and when the accused does not plead guilty, the Magistrate or Bench shall also record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding."

1. See discussion of cas.-law in Antonio Vincente v. State, AIR 1968 Goa 81.

2. 14th Report, Vol. 2.

22.9. Section 265(1.-Language of record and judgment.-

Su.-section (1) of section 265 deals with the language of the record and judgment. The mention therein of the mothe.-tongue of the presiding officer may be omitted as unnecessary at the present day. It also appears unnecessary to require the presiding officer himself to write up the record. In practice, the factual particulars of the case are recorded by the clerk of the Court. The su.-section may accordingly be revised to read:

"(1) Every such record and judgment shall be written either in English or in the language of the Court."

22.10. Section 265(2), (3) and (4.-Special provisions for Benches.-

Su.-section (2) of section 265 enables the State Government to authorise any Bench of Magistrates to employ an official to prepare the record or judgment or both and take the signature thereon of each member of the Bench taking part in the proceedings. The official is to be "appointed in this behalf by the Court to which such Bench is immediately subordinate" i.e., the Chief Judicial Magistrate of the district. As this is a petty administrative matter, the authorisation also could, it is suggested, be left in his hands. The su.-section may be revised to read:

"(2) The Chief Judicial Magistrate may authorise any Bench of Magistrates empowered to try offences summarily to prepare the aforesaid record or judgment or both by means of an officer appointed in this behalf by the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by each member of the Bench taking part in the proceedings."

No modifications are required in su.-sections (3) and (4).

Code of Criminal Procedure, 1898 Back

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