Vasu v. State of Kerala — 1966 DIGILAW 172 (KER)

Judgment :- 1. The petitioner in revision who was the first accused at the trial, was convicted of an offence under S.8(1) (b) of the Prohibition Act, 1950 and sentenced to undergo rigorous imprisonment for three months. In appeal, the District Magistrate confirmed the conviction and sentence. In revision before us, counsel for the petitioner has complained against the legality of the procedure adopted for the trial. The Magistrate took cognizance of the offence on a police report dated the 8th March, 1964, which in terms was a 'charge sheet', as it is called, being a report under S.173 of the Criminal Procedure Code and followed the procedure prescribed by S.251-A in Chapter XXI of the Code, for the trial of a case instituted on a police report. The complaint was that by virtue of S.251 (b) of the Code, the Magistrate ought to have followed the procedure specified in the other provisions of Chapter XXI. This was based on S.56 of the Prohibition Act, which reads as follows: 'When a Police or Prohibition Officer forwards in custody any person accused of an offence under this Act to the Magistrate, having jurisdiction to inquire into or try the case, or admits any such person to fail to appear before such Magistrate, such officer shall also forward to such Magistrate, a report setting forth the name of the accused person and the nature of the offence with which h; is charged and the names of the persons who appear to be acquainted with the circumstances of the case, and shall send to such Magistrate any article which it may be necessary to produce before him. Upon receipt of such report the Magistrate shall inquire into such offence and the person accused thereof in like, manner as if complaint had been made before him as prescribed in the Code of Criminal Procedure, for the time being in force.' There was some discussion at the bar that the first information report of the police officer which was forwarded to the Magistrate, answered the requirements of S.56, and might be treated as the relevant report. On closer examination it is seen, that that report did not fulfil all the requirements of S.56 and did not form the basis on which the Magistrate took cognizance of the offence. On closer examination it is seen, that that report did not fulfil all the requirements of S.56 and did not form the basis on which the Magistrate took cognizance of the offence. The charge-sheet, though compiled under S.173 of the Code, fulfilled all the requirements of S.56 and what is more, was really the basis on which the Magistrate proceeded to inquire into the offence. The question for decision is, whether the Magistrate having taken cognizance of the offence on such a report, was legally justified in following the procedure specified in S.251-A. 2. Under S.56, upon receipt of the report of a police officer as described the Magistrate has no alternative but to follow the procedure specified for the trial of a case instituted on a complaint, the procedure specified in S.251-A being inapplicable. S.61 of the Prohibition Act, as amended in the year 1960 and as was in force at the material time, lays down: "Save as expressly provided in this Act, nothing contained therein shall affect the operation of the Code of Criminal Procedure, for the time being in force. This necessarily implies, that a provision in the Criminal Procedure Code has to yield to an express provision in the Prohibition Act at variance with or contrary to it. While the Criminal Procedure Code prescribes that in a case instituted upon a police report S.251-A shall be followed, the Prohibition Act prescribes in effect, that S.251-A shall not be followed, but that the rest of the provisions in Chapter XXI of the Code shall be followed. Reading S.56 and 61 of the Act together this seems to be the result. In the above view, it does not matter that the definition of complaint in S.4 (1) (h) of the Code excludes a police report. 3. But the State Prosecutor has relied on In re.Pavadai Goundan (AIR. 1957-Madras 292) in which it was held, that the police officer may investigate an offence under Chapter XIV and make a report under S.173 to the Magistrate competent to try the case, and attract the procedure in S.251-A [of the Code, despite S.48 of the Madras Prohibition Act, 1937, which corresponds to S.56. 1957-Madras 292) in which it was held, that the police officer may investigate an offence under Chapter XIV and make a report under S.173 to the Magistrate competent to try the case, and attract the procedure in S.251-A [of the Code, despite S.48 of the Madras Prohibition Act, 1937, which corresponds to S.56. It has to be noted, that at the time the decision was rendered S.53 of the Madras Act which now corresponds to S.61 of the Prohibition Act, 1950, had not been amended into its present form and read: "Nothing contained in this Act shall affect the operation of the Code of Criminal Procedure, 1898." This difference between the provisions was vital, in that under the Madras Act, the operation of the provisions of the Code was not affected by anything in the Act. The decision relied on is distinguishable. The amendment of S.53 of the Madras Act was made in the year 1958. 4. The Magistrate who took cognizance of the case was not the Magistrate who decided it. The latter did notice the defect in procedure, when he continued the trial held by his predecessor, but as stated in his judgment, he was of the view that the irregularity, such as it was, did not vitiate the trial or cause prejudice to the accused. It must be regarded as fundamental, that no court is justified in the commission of 'an irregularity knowing it to be an irregularity and is such cases the distinction between an irregularity which does not vitiate the trial and an illegality which does, hardly arises and the absence of prejudice to the accused can hardly enter into the consideration, the obvious duty of the court being to set right the irregularity if it can, by proceeding afresh from the moment before the irregularity was committed. A trial held pursuant to S.251-A in a case in which the procedure applicable is that under S.252 to 259, was held to be a mis-trial in Ghisia v. State (AIR. 1959 Rajasthan 266); the defect was held to be an illegality sufficient to vitiate the trial. This was also the view in Sardar Khan Multan Khan v. State (AIR. 1963 Madhya Pradesh 337). The advantages from the point of view of an accused person in following the procedure specified in S.252 to 259 have been fully considered and do not seem to require further examination. This was also the view in Sardar Khan Multan Khan v. State (AIR. 1963 Madhya Pradesh 337). The advantages from the point of view of an accused person in following the procedure specified in S.252 to 259 have been fully considered and do not seem to require further examination. We prefer to follow these cases and hold that the trial held in the present case was vitiated. In the view we have taken, we do not propose to decide, whether in investigating an offence under the Prohibition Act, 1950, a police officer is to follow Chapter XIV of the Criminal Procedure Code or Chapter V of the Act. In the result, we set aside the conviction and sentence and send back the case to the Magistrate for trial de novo in accordance with law and in the light of the observations made above. Allowed.