H. Hombe Gowda, J.
1. These two Criminal Appeals by the State are against two separate orders of acquittal passed by the First Class Magistrate, Virajpet, in S. T. R. 571 of 1961 and S. T. R. 1464 of 1961 respectively and involve the determination of the same question, viz., whether the failure of the Magistrate to give reasons for his order of acquittal in a case tried summarily under Section 264 of the Code of Criminal Procedure amounts to an illegality which vitiates the trial, hence they have been heard together and this judgment will govern both of them.
2. In S. T. R. 571 of 1961 the charge against accused was that he was found in possession of two bottles which contained 16 drams of arrack without a permit and had thereby committed an offence punishable under Section 3(1) (a) of the Coorg Probihition Act. In S. T. R. 1464 of 1961 the accusation against the respondent was that he was found moving in the streets of Virajpet having consumed arrack and in a state of intoxication on 24-6-1961 and had thereby committed an offence punishable under Section 4 of the Coorg Prohibition Act. The learned Magistrate tried both these cases summarily under Section 264 of the Code of Criminal Procedure. He recorded the substance of the evidence of the witnesses examined for the prosecution and also the statements made by the respondents. On the basis of the materials placed on record by the prosecution in each of these cases the learned Magistrate came to the conclusion that no case had been made out against the respondents. Accordingly he acquitted the respondents. In the appropriate column meant for recording the finding, viz., column "h" of the summary form, the learned Magistrate passed a one word order "acquitted", in both these cases. It is the legality and correctness of this one word order that is challenged in these appeals.
3. It is urged by Mr. Shankara Chetty the learned Additional Assistant Advocate General that the learned Magistrate was bound to write a judgment giving the reasons for acquitting the accused in each of these cases and that the order of acquittal passed without assigning reasons is illegal and is liable to be set aside. He urged that in a case tried summarily under Section 264 of the Code of Criminal Procedure as in other cases tried regularly, the trial Magistrate is bound to record a judgment assigning reasons for his order of acquittal as the State has a right to prefer an appeal against all acquittals under Section 417 (1) of the Code of Criminal Procedure. His argument was to the effect that as in all cases of acquittal the State has a right to prefer an appeal under Section 417 (1) of the Code of Criminal Procedure, the Court is bound to write a judgment embodying the substance of the evidence even in cases tried summarily to enable the State to formulate the grounds of attack against the judgment in the memorandum filed into the appellate Court.
In other words his argument was that every case of acquittal is a case where an appeal lies at the instance of the State under Section 417 (1) of the Coda of Criminal Procedure and that all cases in which the State is the prosecutor should be tried under Section 264 of the Code of Criminal Procedure as that is the section under which appealable cases fall. We are of the opinion that when Sections 263 and 264 of the Code of Criminal Procedure speak of cases in which an appeal lies or in which in appeal lies, they have in mind only an appeal against conviction which is the ordinary kind of criminal appeal and not the special kind of appeal against acquittal contemplated by Section 417 of the Code of Criminal Procedure. If the case is one in which no appeal can possibly lie on conviction, i.e., if the maximum sentence possible is a fine of Rs. 200/- then the case falls within Section 263 of the Code of Criminal Procedure. But if on the other hand the case is one in which on conviction it is possible to pass an appealable sentence, then the case falls within Section 264 of the Code of Criminal Procedure. The appeal contemplated under Section 264 of the Code of Criminal Procedure is an appeal against a conviction and not an appeal against acquittal.
In Emperor v. Sugnomal Bhojraj, AIR 1942 Sindh 52 a Division Bench of the Sindh High Court repelled the contention similar to the one advanced by the learned Additional Assistant Advocate General with the following observations :-
"The learned Advocate-General argued before us that Sections 263 and 264 Criminal P. C. were not intended to apply to cases of acquittal at all though at first he argued that Section 264 Cr. P. C. did not apply to cases of acquittal because an appeal under Section 417 Cr. P. C. lies against an acquittal. It might of course as a matter of first impression be said that Section 263 Cr. P. C. does not apply to a case where an accused is acquitted because it applies only to cases where no appeal lies and an appeal lies against an acquittal. But reading Sections 263 and 264 of the Code together as they should be read, we do not think that this was the intention at all. The arguments on this point have we think with all respect been effectively set out in a judgment of the Chief Court of Lower Burma given as long ago as Narayanswamy v. A. Blake, (1905) 3 Cri. LJ 433. The relevant passage in that judgment is as follows :-
"The next objection taken is that the Magistrate failed to comply with the provisions. of Section 264 Cr. P. C. in that he did not record a judgment embodying the substance of the evidence. Apparently the case came under Section 263 of the Code and if it had come within that section I do not think there would have been any error in the, Magistrate writing as his order merely the word 'acquitted'. Clause (h) of Section 263 requires a brief statement of the reasons for the finding only when the accused has been convicted and there is as far as I can see nothing to compel a Magistrate to give his reasons when he acquits, it was argued before me that Section 264 which requires a judgment embodying the substance of the evidence in an appealable case should have been followed because the local Government has an appeal against any order of acquittal and consequently the case was an appealable case. To adopt such interpretation would stultify Section 263 and I think that the section must be read as if the words 'by a convicted person' followed after the words 'in cases where no appeal lies'."
4. The question for consideration is whether the one word order 'acquitted' passed by the learned Magistrate in these two cases without writing a judgment giving reasons for his finding is illegal. The provisions of the Code of Criminal Procedure which relate to the summary trials are Sections 263 and 264 of the Code of Criminal Procedure. Cases where no appeal lies are tried under Section 263 of the Code of Criminal Procedure and column (h) in which the finding is to be recorded prescribes that in case of a conviction a brief statement of the reasons therefor should be given. The section says clearly that the Magistrate need not record the evidence of witnesses or frame a formal charge but he should enter in such form as the State Government may direct, the particulars mentioned in the Section. It appears on a fair reading of the section that it is necessary that a brief statement of the reasons for the finding should be given in case of a conviction (vide column (h) of the form).
Similarly Section 264 of the Code of Criminal Procedure requires that in a case tried summarily in which an appeal lies, the Magistrate shall record the substance of the evidence, the particulars mentioned in Section 263 of the Code of Criminal Procedure and 'shall before passing any sentence record a judgment' (The underlining (here into ' ') is ours). The language of these two sections is quite clear and explicit and by necessary implication excludes the necessity for recording a judgment in case of an acquittal. If it was the intention of the Legislature that reasons should be given in a case of acquittal as in the case of a conviction it was unnecessary to insert in clause (h) to Section 263 of the Code of Criminal Procedure the words "in the case of a conviction" or to insert in Section 264 of the Code of Criminal Procedure the words "before passing any sentence" for, the two sections would apply equally to a case of conviction. The two sections, in our opinion, do impliedly exclude the necessity for recording a judgment in case of an acquittal.
5. It is not disputed that the learned Magistrate has recorded the substance of the evidence of the witnesses and also the particulars mentioned in Section 263 of the Code of Criminal Procedure in the form prescribed by the State Government. It cannot, therefore, be urged that he has violated any of the conditions laid down in Section 264 of the Code of Criminal Procedure.
6. The above conclusion that we have arrived at on the interpretation of the language of Sections 263 and 264 of the Code of Criminal Procedure is supported by ample authority. In AIR 1942 Sindh 52, a Division Bench of the High Court of Sindh held that in a case tried summarily under Section 264 of the Code of Criminal Procedure where there is not a conviction but an acquittal, it is not necessary to assign reasons for the finding. Their Lordships observed :-
"The fact that the Legislature thought it necessary to insist upon certain precautions in the case of conviction would not we think justify the conclusion that they insisted on these or even greater precautions in the case of an acquittal. Appeals against acquittals are rare; the power of an appeal against acquittal exercised by the Government under Section 417 Cr. P. C. is a special power and must not, we think, be confused with the right of appeal the Legislature had in view when Sections 263 and 264 Cr. P. C. were enacted."
In Gorachand Das v. Nitai Das, , Sen J. rejecting a reference made by the Sessions Judge against an order of acquittal passed in a summary trial on the ground that the Magistrate had not written a Judgment assigning reasons for his finding observed :-
"The main complaint of the learned Judge is that the Magistrate had not written a judgment when acquitting the accused. If he had taken the trouble to understand the provisions of Section 263 Criminal P. C. he would have seen that in a case of acquittal no judgment is required to be written when a case is tried summarily. Learned advocate appearing in support of the reference referred me to the provisions of Section 264 of the Code, and he says that that section lays upon the Court a duty to record a judgment. This contention is equally futile. Section 264 applies only when the accused is found guilty. It has no application to a case where the accused is acquitted." In State v. C.K. Joseph, , a Division
Bench of the Kerala High Court after reviewing the case law on the point held that Sections 263 and 264 of the Code of Criminal Procedure read together show that in a summary trial no judgment or other order giving reasons is necessary for an acquittal whether the case falls under Section 263 or 264 of the Code of Criminal Procedure and that an order of acquittal passed without assigning reasons is not illegal.
7. It is no doubt true there is support to the contrary view to the effect that a Magistrate should, even in a summary trial, give a brief statement of the reasons even when he acquits an accused for instance Emperor v. Akbar Ali, AIR 1934 Ondh 177 (2): Kanchan Bhusan v. Sailendra Nath. and State v. Ishar Das,
. With all respect to the learned Judges that decided those cases, we feel that in none of those cases the learned Judges referred to the clear language of Sections 263 and 264 of the Code of Criminal Procedure themselves which are meant to govern the recorded judgment in cases tried summarily by the Magistrate. The learned Judges based their conclusion on the principle that a judicial order should contain reasons for the finding be it a conviction or acquittal. We are unable to accept this reasoning. The intention of the Legislature must be gathered from the language used in Sections 263 and 264 of the Code of Criminal Procedure. As we have already stated the language of these two sections is quite clear and explicit and excludes the necessity for recording a judgment in case of an acquittal.
8. We have reached the conclusion on the interpretation of Sections 263 and 264 of the Code of Criminal Procedure that it is not obligatory for a Magistrate to write a judgment assigning reasons in a case of acquittal. But on the principle that a judicial order must be a 'speaking order' it is highly desirable that even in cases of acquittal in cases tried summarily a brief statement of the reasons for the finding is given though the language of the section does not require it. We may in this connection usefully refer to the following observations of the Kerala High Court in , for the
guidance of the Magistrates:-
"At the same time we think that although it is not illegal for a Magistrate to pass an order of acquittal at a summary trial without giving reasons therefor he ought as a matter of practice to write a short judgment giving the reasons at least in cases falling under Section 264 of the Criminal Procedure Code, that is, in cases where, on conviction, a sentence more severe than a fine of Rs. 200/- is possible. When the Code was enacted it was probably thought that only petty cases, in which the Government would not think it worthwhile to prefer an appeal against acquittal, would be tried under the provisions of Chapter XXII. But, increasingly, more serious offences are now being tried under that Chapter and in some of them as for example in cases of the present kind the Government is very much interested in the result. Although appeals against acquittals are hardly ever preferred in cases falling under Section 263 of the Cri. P. C., they are frequent enough in cases falling under Section 264 to require the writing of a judgment in such cases so that the court sitting in appeal (as also the Government before directing the filing of an appeal) might know the reasons for the acquittal."
9. For the reasons stated above, these appeals fail and are dismissed.