Bhagwat Saran v. Rex — 1948 DIGILAW 60 (ALL)

ORDER Wali Ullah, J. - The applicant Bhagwat Saran has been tried and convicted of an offence under R. 81 (4), Defence of India Rules, by a Magistrate of the first class and sentenced to imprisonment till the rising of the Court and a fine of Rs. 250 or in default three months' rigorous imprisonment. On appeal, the learned Sessions Judge has affirmed the conviction of the applicant but, in the circumstances of the case, reduced the sentence to a fine of Rs. 100 only, or, in default, to two months rigorous imprisonment. The applicant has now come up in revision to this Court. 2. It appears that on 24th october 1946 one Bashir Ahmad purchased two match boxes from the applicant, who deals in them, for two annas. The control price at the time was only one anna for the two match boxes. He was accordingly prosecuted for an offence under R. 81 (4) read with Notification No. P. & S.C. 210-42, dated 11th August 1942, as continued in force by S. 5, U.P. Control of Supplies (Temporary Powers) Ordinance, 1946, and convicted and sentenced as mentioned above. 3. It was a summary trial. The learned Magistrate of the first class who held the trial has, however, left a summary of his notes in a sealed cover on the record. 4. The defence set up by the applicant was not clearly stated, but it was substantially to the effect that he sold only one box of matches and accepted one anna for it; that subsequently, on being pressed, he gave another box of matches to Bashir Ahmad and demanded another anna from him which was paid to the applicant. In support of the prosecution case there is evidence of Bashir Ahmad, Mohammad Mohsin and Shiv Charan. The applicant, in support of his defence, also produced three witnesses, namely, Amar Nath, Ram Kumar and Jagdish Prasad. The learned Magistrate, on a consideration of the evidence and the probabilities of the case, held that the prosecution story was correct, that the defence put up by the applicant was entirely concocted and that the defence witnesses had told lies. In view of this finding, the applicant was convicted and sentenced to imprisonment till the rising of the Court and a fine of Rs. 250 as mentioned already. In view of this finding, the applicant was convicted and sentenced to imprisonment till the rising of the Court and a fine of Rs. 250 as mentioned already. Against this conviction, when the applicant went in appeal to the learned Sessions Judge, the points raised were only matters relating to the evidence led in the case and finally it was urged that the sentence was too severe. The learned Judge reduced the sentence to a fine of RS. 100 only. When the matter was before the learned Judge it was brought to his notice that in the judgment of the learned Magistrate the reference given was to a Notification NO. 65-1-CS-534 : 42, dated 11th February, 1943. This was obviously a technical error which had crept in, owing to inadvertence and so the learned Judge corrected this mistake and at the close of his judgment made these observations : The conviction is altered to one of contravention of Notification No. P. & SC 210-42, dated 11th August 1942. 5. Learned counsel for the applicant has raised various contentions in this Court. He has taken full advantage of the obvious error which has crept into the judgment of the learned Magistrate when he referred to a wrong notification which has nothing to do with the "retail" sale of matches. The learned counsel has contended that inasmuch as the accusation against the applicant related to a contravention of Notification No. 65-1-CS 534 : 42, dated 11th February 1943, the learned Judge had no power to alter the conviction to one for contravention of Notification No. P. & SC 210-42, dated 11th August 1942, and has referred to Ss. 535 and 537, Criminal P.C. In my judgment, there is absolutely no force in this contention. To my mind, it was nothing more than a mere oversight on the part of the learned Magistrate to give reference to a wrong notification. The facts alleged against the applicant which constituted the offence were perfectly clear at every stage of the proceedings to everybody concerned and a reference by inadvertence to a notification other than the proper notification can have no effect whatsoever on the validity of the trial. I am fully satisfied that the applicant was in no way misled so far as his defence is concerned. 6. I am fully satisfied that the applicant was in no way misled so far as his defence is concerned. 6. Next, it has been contended that the learned Sessions Judge, who heard the appeal, had no jurisdiction to uphold the conviction of the applicant as it was in respect of an offence about which there was no report by a public servant. This contention is intimately connected with the technical mistake which was committed by the learned Magistrate in giving a wrong reference to the Notification for the contravention of which the applicant was prosecuted. If the learned Judge corrected the obvious formal defect in the reference given by the learned Magistrate, I see no reason whatsoever for holding that the learned Sessions Judge had no jurisdiction to uphold the conviction of the applicant. What the learned Judge meant by saying that he was altering the conviction to one of contravention of Notification dated 11th August 1942, was only this that he was maintaining the conviction of the applicant but that where the wrong reference had been given by the learned Magistrate, the correct reference should be given. I am, therefore, of the opinion that there is absolutely no force in this contention either. 7. Lastly, it has been contended by the learned counsel for the applicant that the summary trial of the applicant was illegal inasmuch as there was no compliance with E. 130 (4), Defence of India Rules. Rule 130 (4) reads thus : Any Magistrate or Bench of Magistrates empowered for the time being to try in a summary way the offences specified in sub-s. (1) of S. 260, Criminal P.C., 1898, may if such Magistrate or Bench of Magistrates thinks fit, on an application in this behalf being made by the prosecution, try a contravention of any such provisions of these rules (or orders made thereunder) as the Central Government may by notified order specify in this behalf in accordance with the provisions contained in Ss. 262 to 265 of the said Code. The contention of the learned counsel is that a summary trial of the applicant could not have been held by the learned Magistrate without an application for that purpose by the prosecution. 262 to 265 of the said Code. The contention of the learned counsel is that a summary trial of the applicant could not have been held by the learned Magistrate without an application for that purpose by the prosecution. The argument is that as there is no application on the record showing that the prosecution applied to the learned Magistrate for holding a summary trial of the applicant, it must be taken for granted that no application was made to the learned Magistrate for holding a summary trial. As would be noticed from the provisions of sub-cl. (4) of Rule 130 set out above, the relevant provision is only this : On an application in this behalf being made by the prosecution. 8. There is no indication here as to whether the application is to be in writing or it should be made orally. If an oral application is permissible, obviously then the mere fact that no written application is traceable on the record would not show that not even an oral application was made. 9. Learned counsel has, in this connection, invited my attention to the case of AIR 1947 93 (Oudh) where it was held by a learned Judge of the Oudh Chief Court : Rule 130 (4) insists that a person shall be tried summarily in respect of such matters as are mentioned in the said rules only when an application has been made by the prosecution in this behalf. This is an important and salutary provision which cannot be disregarded. If no application is made by the prosecution the summary trial of the accused will be illegal. 10. The specific question which has been raised before me, viz., whether an oral application will satisfy Rule 130 (4) does not appear to have been raised in that case for it is clear that it was admitted by the learned counsel for the Crown in that case that no application was to be found on the record. It was, however, assumed from the absence of an application on the record that no application had been made and the decision proceeds on that assumption. 11. Next, reference has been' made to the case of Kalika Prasad v. King Emperor, cri. Revn. No. 1367 of 1944 decided on the 13th April 1945 by the then Chief Justice, Sir Iqbal Ahmad. 11. Next, reference has been' made to the case of Kalika Prasad v. King Emperor, cri. Revn. No. 1367 of 1944 decided on the 13th April 1945 by the then Chief Justice, Sir Iqbal Ahmad. It appears that in that case the learned Magistrate, who held the summary trial, had failed to make a record of the evidence of the witnesses examined in the case. In addition to this, it was contended for the applicant in that case that no application as required by clause (4) of R. 130 had been filed and the learned counsel for the Crown was not able to trace any such application on the record. In view of this fact it was assumed by the learned Judge that the assertion of the learned counsel for the applicant was correct, and it was held that the trial was bad in law and the conviction and sentence of the applicant were set aside. 12. Again, my attention has been invited to a decision of my own in the case of Sambhu Nath and others v. King-Emperor, Cri. Revn. No. 776 of 1945, decided on 1st October 1945. In this case also there was on the record no application by the prosecution requesting the Magistrate to hold a summary trial and no contention such as the one which has been raised in the present case was raised by the counsel for the Crown in that case. Following the decision of Iqbal Ahmad C.J. in the case of Kalika Prasad v. King-Emperor, cri. Revn. No. 1367 of 1944: (decided on 15th April 1945), I accepted the contention of the applicant and allowed the application and set aside the conviction and sentence of the applicant. 13. Next, my attention has been drawn to the case of Bind Sahu v. King-Emperor, cri. Revn. No. 356 of 1946 decided on the 2nd of August 1946 by Mulla J. In this case, however, no question whether a written or oral application would comply with the requirements of clause (4) of R. 130 was raised. The learned Sessions Judge had held that the summary trial was illegal, but he had rejected the application in revision on the ground that there was no prejudice caused to the applicant. The learned Sessions Judge had held that the summary trial was illegal, but he had rejected the application in revision on the ground that there was no prejudice caused to the applicant. The learned Judge of this Court in revision held that the trial being illegal there could be no question whether any prejudice was or was not caused to the accused person. The learned Judge, in this connection, referred to S. 530, Criminal P.C. and held that the proceedings before the learned Magistrate were void. In this view of the matter, the conviction and sentence were set aside and a retrial was ordered. 14. Reference has also been made to the case of Munshi Lal Vs. Emperor, AIR 1948 All 278 decided by two learned Judges of this Court. In that case it was held that, where the accused was not tried in a summary way in conformity with the statutory provisions of the Hoarding and Profiteering Prevention Ordinance (No. xxxv of 1943) (as amended by Ordinance No. LIII of 1914) under which he was charged and convicted, under the circumstances of that case at the worst it was a case of irregularity and that the irregularity was curable by the provisions of S. 537, Criminal P.C. 15. The learned Judges in that case have inferred to the three well-known decisions of their Lordships of the Privy Council in Subrah-mania Ayyar v. King-Emperor, 25 Mad, 61 : (28 I.A. 257 (P.C.)), AIR 1927 44 (Privy Council) and Pulukain Kottayya v. The-King Emperor, 1947 A.L.J. 855 : (A.I.R. 1947 C. 67) where the scope of S. 537 has been fully discussed by the Judicial Committee. They have also referred to a decision of two learned Judges of this Court in Emperor v. Bishan Sahai, ILR (1937) ALL. 779 : (A.I.R. 1947 ALL. 714), where the learned Judges have discussed the scope of S. 587 at great length and have considered the various decisions of their Lordships of the Privy Council as well as of High Courts in India, including a Full Bench decision of this Court, relevant to the point under consideration. 16. The case of Munshi Lal Vs. 714), where the learned Judges have discussed the scope of S. 587 at great length and have considered the various decisions of their Lordships of the Privy Council as well as of High Courts in India, including a Full Bench decision of this Court, relevant to the point under consideration. 16. The case of Munshi Lal Vs. Emperor, AIR 1948 All 278 can be helpful in the present case only as regards the consequences which may flow from the non-observance of the strict provisions of clause (4) of R. 130, Defence of India Rules, but the specific question raised before me, namely, whether an oral application by the prosecution will satisfy the requirements of clause (4) of R. 130, did not arise for consideration in any of the above-mentioned cases. 17. My attention has also been invited to the case in Sahdeo Roy and Another Vs. Emperor, AIR 1948 All 43 decided by two learned Judges of this Court, where it was held: The words 'on an application in this behalf being made by the prosecution' in R. 130 (4), Defence of India Rules, are supplementary to the provisions of S. 260, Criminal P.C., and what was intended was to add to the provisions of S. 260 the list of offences triable in a summary way. An application for prosecution under the provisions of R. 130 (4), Defence of India Rules, has to be made for an offence punishable for a period longer than six months as contemplated by the said rule. An examination of this decision makes it clear that the specific point raised in the present case did not arise there in any shape or form. 18. The last reported decision of this Court which has been brought to my notice is the case of Mangi Lal Vs. Emperor, AIR 1945 All 98 decided by a learned single Judge of this Court. This case related to an offence under R. 81 (4), Defence of India Rules. It was held by Mulla J. that a case relating to an offence under R. 81 (4), Defence of India Rules, is a warrant case and as such the provisions of Ss. 262 to 265, Criminal P.C. must be complied with. This case related to an offence under R. 81 (4), Defence of India Rules. It was held by Mulla J. that a case relating to an offence under R. 81 (4), Defence of India Rules, is a warrant case and as such the provisions of Ss. 262 to 265, Criminal P.C. must be complied with. At page 45 the learned Judge made certain observations, which would show that, according to his view, even an oral application would satisfy the requirements of R. 180 (4), Defence of India Rules. At page 45 the learned Judge observed as follows : It may be presumed that the learned Magistrate who tried this case had power to try in a summary way the offences specified in sub-section (1) of S. 260, Criminal P.C. and further that an oral application was at least made to him on behalf of the prosecution to try the case summarily, but the important point remains that the case had to be tried in accordance with the provisions contained in Ss. 262 to 265 of the said Code. 19. The learned Judge, instead of setting aside the conviction and sentence of the applicant and ordering a re-trial, held that in the circumstances of the case a re-trial was not proper, but reduced the sentence considerably. 20. The position, therefore, is that in a number of cases decided by this Court and at least in one case decided by the Avadh Chief Court, referred to above, it was assumed that no application was made by the prosecution simply because no written application was to be found on the record of the case. In none of these cases, however, it appears that the specific question, whether an oral application by the prosecution would meet the requirements of R. 130(4), Defence of India Rules, was specifically raised and decided. I am inclined to agree with the view expressed by Mulla J. in Mangi Lal Vs. Emperor, AIR 1945 All 98 (ubi supra), i.e., that even an oral application on behalf of the prosecution would satisfy the requirements of R. 130(4), Defence of India Rules. 21. The question, however, remains whether there is anything on the record of this case to show that such an oral application was actually made on behalf of the prosecution. Emperor, AIR 1945 All 98 (ubi supra), i.e., that even an oral application on behalf of the prosecution would satisfy the requirements of R. 130(4), Defence of India Rules. 21. The question, however, remains whether there is anything on the record of this case to show that such an oral application was actually made on behalf of the prosecution. I have examined the record of the case and particularly the order sheets and the notes of the evidence kept by the learned Magistrate on the record. There is no indication anywhere in the record which will indicate that even an oral application was made for the trial of the case in a summary way, as provided in Ss. 262 to 265, Criminal P. 0. It may, therefore, be that not even an oral application was made on behalf of the prosecution requesting the learned Magistrate to adopt the summary procedure for the trial of the case. On the other hand, no objection seems to have been raised by the accused against the summary procedure adopted by the learned Magistrate; nor was there any such objection taken in the petition of appeal filed before the learned Sessions Judge. 22. It may, therefore, be argued, as has been done in this case, that absence of an objection to the procedure adopted shows that an oral application was actually made and that it was allowed by the learned Magistrate. 23. But it may be that it escaped the attention of every one, including the learned Magistrate, to see if the provisions of R. 130(4), Defence of India Rules, in this behalf were complied with in this case. 24. In this state of the matter the accused must have the benefit of doubt about the oral application made by the prosecution. For the purposes of this case it must, therefore, be held that not even an oral application was made by the prosecution for holding a summary trial. What is the consequence of a failure on the part of the prosecution to apply to the learned Magistrate asking him to hold a summary trial is the next question which has to be considered. What is the consequence of a failure on the part of the prosecution to apply to the learned Magistrate asking him to hold a summary trial is the next question which has to be considered. In this connection the provisions of S. 537, Criminal P.C., have to be carefully considered in order to see whether the irregularity, or illegality, involved in the trial of the case in a summary way, in the absence of an application by the prosecution in that behalf, can be cured. I have already made a reference to the case of Munshi Lal Vs. Emperor, AIR 1948 All 278 decided by two learned Judges of this Court. In that case the scope of S. 537, Criminal P.C., was considered and several decisions of this Court as well as of their Lordships of the Privy Council were considered in this connection. In the present case, however, I do not propose to decide this case with reference to the provisions of S. 537, Criminal P.C., as I find that in a number of cases decided by learned Single Judges of this Court it has been held that the necessary consequence of an omission on the part of the prosecution to apply to the Magistrate for a summary trial is that the trial becomes illegal. In some cases learned Judges have gone to the extent of saying that in such circumstances the trial is without jurisdiction. However, I need not consider this matter any further. 25. In accordance with the view taken by several learned Judges of this Court I would allow the revision and quash the conviction and sentence of the applicant. I, accordingly, allow the revision and set aside the conviction and sentence of the applicant. The fine, if paid, shall be refunded.