P L D 1956 Dacca 108 (PLP)

BADIUZZAMAN, J.‑The above mentioned Reference and Revision being inter‑connected have been heard together for the sake of convenience. These two cases arise out of the same incident. What happened was this: On the 20th February 1952, the opposite party Abdul Hakim Bhuiya filed a complaint in the Court of the Sub-divisional Magistrate, Narayanganj, alleging that on the 18th February .1954, the petitioners had trespassed into his homestead, erected a but thereon and also dishonestly cut and taken away three trees worth about Rs.

40. The defence was a total denial. The learned Magistrate tried the case in a summary procedure and convicted the petitioners under sections 379 and 447 of the Pakistan Penal Code and sentenced each of them to a fine of Rs. 30 for each of the offences charged, with in default to rigorous imprisonment for one month each. In the Revision Case the Rule was issued at the instance of the petitioners on the District Magistrate of Dacca and the opposite party calling upon them to show cause why the trial should not be held illegal and the convictions and sentences set aside. The Reference is directed against the order awarding sentence of one month in default of payment of fine under section 447 of the Penal Code. Mr. Sudhangsu Kumar Bose has appeared to support the Rule while Mr. Abdus Sobhan has appeared in opposition thereto. Of the six grounds mentioned in the application, Mr. Bose has pressed only ground No.

2. The ground reads: "For that the case under section 379, P. P. C. being a warrant procedure case the learned trial Court acted illegally in not following the said procedure, especially, the provisions of section 256, Criminal Procedure Code and was wrong to finish the examination and cross‑examination of the P. Ws. on one and the same date and the trial having been vitiated ab initio the conviction of the petitioners is liable to be set aside". In support of the ground Mr. Bose has relied on the decision in the cases of Kamala Kanta Ghose and another v. Emperor (52 C W N 323) and Rai Mohan Mandal v. Narmada Dasi (53 C W N 877). In both the cases relied on by the learned Advocate warrant cases were tried summarily. but provisions of section 256 of the Code of Criminal Procedure were not followed. On this simple fact the law laid down in those cases is that the Court trying a warrant case summarily is bound to 'follow the, provisions of sections 225 and 256 of the Code of Criminal Procedure as those provisions have not been excluded from the procedure laid down for summary trials. In one of these cases it has been further held that the duty of a Magistrate under section 256 of the Code of Criminal Procedure, to ask the accused whether he wishes to cross‑examine the witnesses any further, is a duty which must be performed after the plea of the accused has been taken. Herein the present case the trying Magistrate adopted the procedure of the summons case and finished the examination and cross‑examination of all the witnesses on the same date one after another at the same stretch. Not only this, even after the plea of the accused had been taken the learned Magistrate did not ask if they would cross‑examine the witnesses. Evidently, the procedure adopted by the learned Magistrate is amazingly utopian, and in view of the law laid down in the cases referred to above and provisions of section 256 of the Code of Criminal Procedure, I am unable to accord my sanc tion to it. It is true that there was joint trial of two offences but that will not improve the matter much when it is well -settled that where there is a joint trial of two offences one of which is triable as a summons case and the other as a warrant case, the learned Magistrate must follow the procedure of warrant case with regard to both the offences. In this connection the learned Advocate for the petitioners has drawn my attention to the case of Queen‑Empress v. Segal Samba Sajao and others (I L R 21 Cal. 642), but facts of that case are altogether different from those of the present case: Moreover, the principle of law laid down in that case does not at all conflict with the law laid down in the cases relied on by the learned Advocate for the petitioners. In the circumstances, I must say that the Revision is well‑grounded and it must succeed. Next comes the Reference. Section 65 of the Pakistan Penal Code runs to the effect that the term of imprisonment in default of payment of fine should not exceed one‑fourth of the maximum term of imprisonment fixed for the offence. Section 33 (1) (b) of the Code of Criminal Procedure lays down :‑ "In any case decided by a Magistrate where imprisonment has been awarded as part of the substantive sentence, the period of imprisonment awarded in default of payment of fine shall not exceed one‑fourth of the period of imprison ment which such Magistrate is competent to inflict as punishment for the offence otherwise than as imprison ment in default of payment of the fine". As the provision of these two sections stand, a judge or a Magistrate, however, wide his power otherwise may be cannot award sentence of imprisonment for more than one fourth of the maximum (three months) prescribed for an offence under section 447 of the Pakistan Penal Code but here in the present case, as already pointed out, the Magistrate awarded sentence of imprisonment for one month in default of payment of fine. Evidently, the sentence of imprisonment exceeds the limit prescribed for the offence. The learned Additional Sessions Judge has rightly taken exception to it but he has, however, recommended reduction of imprison ment to one‑third of the maximum limit. Recommendation being defective, I reject the Reference. This rejection, however, will not prejudice the petitioners in the least when the Rule issued in the Revision case is going to be made absolute: In the result, the Rule is made absolute and the convic tion and sentence are set aside and the case is sent back to the Magistrate for fresh trial according to law. The Reference is rejected, being defective. K. B. A. Rule made absolute : Reference rejected.