P L D 1959 (W (PLP)

MUNSHI, J.‑This is a reference made by the Sessions Judge, Karachi, recommending that the revision application filed by Abdul Najib against the judgment of the S. D. M. (Mr. Owais) convicting him of the offence punishable under S. 323, P. P. C. and sentencing him to pay a fine of Rs. 50 or in default to suffer R. I. for 15 days, be accepted. The learned Judge has also asked us for a decision on the point whether the appellant, being a public servant, could be tried summarily as has been done in this case. Abdul Najib is a peon serving in this Court. Divorce proceedings between him and his wife were pending in this Court when this incident occurred. On the day of the incident, after the hearing in the divorce proceedings was over, Najib assaulted his wife while she was going down‑stairs. She raised cries, which attracted the Deputy Registrar and one Nasiruddin. She complained to them. The Deputy Registrar arranged for her escort. She then filed a complaint under S. 323, P. P. C. which resulted in his conviction and sentence as indicated above. Against this judgment, Na jib filed a revision application before the learned Sessions Judge, who has made this reference. We have heard the learned counsel on either side, and we see no reason to set aside the judgment of the S. D. M., which is based on the appreciation of evidence recorded by him. The main ground of attack on the judgment is that it is based on the evidence of interested and chance witnesses. We do not think that we can go into this question at this stage. Even other wise, the judgment shows that the evidence of the complainant was corroborated by her mother and witness Nasiruddin, and to some extent by the Deputy Registrar. It was but natural for the mother to accompany her daughter to the Court on the day of the hearing of the divorce proceedings. Nothing personal is alleged against Nasiruddin. As for the question, whether the S. D. M. could or could not summarily try Najib, he being a public servant, we hold that there is no legal bar to the summary trial of a public servant. The question whether summary trial of a public servant is desirable or not depends on the facts of each case. The main ground which is usually advanced against such a trial is, that in case of his conviction, the person is likely to lose his service. But, it must be remembered that it is not in every base of conviction that a public servant loses his job. It depends upon the gravity of the offence and the circumstances in which it was committed. In this particular case, it cannot be reasonably argued that because of his conviction under S. 323, which conviction has no connection whatsoever with his duties as a public servant, the man will lose his job. It is of course desirable that in case a public servant, is likely to lose his job, on account of his conviction, he should not be tried summarily, for that conviction by itself, can be a ground for his dismissal. In the case Robert John Bradley v. Emperor (A I R 1932 Lah. 188), Sir Shadilal, C. J. held that:‑ " Summary procedure, though legal, is most inappropriate in cases in which Government servants, no matter what their rank, are "concerned as accused persons." But, in the subsequent case decided by the same 'High Court which is reported in A I R 1939 Lah. at page 467, Ram Lail, J. held that It cannot be laid down as a proposition of law pure and simple that a Government servant should not be tried summarily or that generally the summary procedure is inappropriate in cases in which Government servant is an accused." Reference to the judgment in the case of ' Bradley v. Emperor Ram Lail, J. observed that Sir Shadi Lail, in accepting the reference in the above case, meant to hold that Government servants should as a rule never be tried by the summary procedure. In the case Kanank Chandra Bairagi v. Superintendent of Police (A I R 1955 Assam 240), the learned Judge held that: " On the question whether a Government servant, when charged with an offence which is summarily triable, may not be tried summarily, it is not desirable to lay down any hard and fast rule which may apply generally or to all cases. The law leaves the discretion with the Magistrate concerned. The fact that an accused who happens to be a Government servant is liable to be dismissed or punished departmentally, is certainly a relevant consideration. But no binding rule can be laid down." In the case of Muhammad Sultan v. The State (A I R 1955 Mad. 92) Balkrishan Ayyar, J. held that " The summary trial of a person otherwise lawful does not become illegal, merely because he is a Government servant. It may not be very appropriate but that would, of course, depend upon the circumstances of each case." In the case of Aijaz Muhammad v. The State (P L D 1958 Kar. 440) our brother Constantine, J. while dealing with this aspect of the case, held that " the reason behind this (rule) is that :‑ " Upon a finding of a criminal Court it is not necessary in departmental proceeding to examine the facts again. The appointing authority, who has the power to dismiss, is entitled to rely upon the judgment of the criminal Court. Thus this rule, in my opinion, should be confined merely to those cases where, following the conviction by the Court, departmental action is to be anticipated. I do not think, with due respect, that Mr. Justice Shadilal observed this distinction in Bradley v. Emperor." Referring to the case before him, our brother observed " In the present case, no one could seriously suggest that a Stenographer is liable to dismissal or reduction in rank or even a warning by his superiors on the ground that he has been convicted in a case under section 323, P. P. C. where the connection between that case and his official duties is non existent and where there is no question of moral obliquity." In the case Sachinand and another v. State (A I R 1956 All. 212) Asthana, J. held that :‑ " though the summary trial was legal yet it was not desirable as the conviction was likely to result in their dismissal from service." In the above case the public servant concerned was convicted of the offence punishable under S. 379, I. P. C. In the concluding para. of the judgment, the learned Judge observed that :‑ " The summary trial of the accused in this case though it was legal was not desirable in view of the consequences arising out of it." There is no doubt that in case of conviction for an offence theft, the public servant is liable to dismissal, and in that case e it is always desirable that he should not be tried summarily] This last ruling has no application to the facts of this case, as Najib has been convicted of the offence under S. 323, P. P. C. and that conviction would not result in his dismissal. Whether a case should or should not be tried summarily depends not so such on the status of the person concerned as on the prejudice which such a trial is likely to cause. Thus in each case prejudice is the test. We are therefore satisfied that by trying the applicant summarily, the learned Magistrate has committed no irregularity nor has the trial caused any prejudice to the applicant. We therefore maintain the conviction and sentence imposed upon the applicant Najib and return the reference. K. S. A. Reference rejected.