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1967 DIGILAW 220 (ALL)

Mahngu Singh v. State of Uttar Pradesh

1967-07-11

RAJESHWARI PRASAD

body1967
ORDER Rajeshwari Prasad, J. - The revisionist was convicted for an offence u/s 9(a) of the Opium Act by a Magistrate 1st Class, Saharanpur and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 300/-. He was sent up for trial for the aforesaid offence by the Excise Inspector, Circle I, Saharanpur by his challani report dated 23-6-1961. 2. An appeal preferred against the order of conviction passed by the learned Magistrate was dismissed by the learned Sessions Judge, Saharanpur, by his order dated 6-8-1965, on the finding that the prosecution had succeeded in establishing the case against the revisionist. 3. The present petition in revision is directed against the order of the learned Sessions Judge, Saharanpur. 4. Learned Counsel for the revisionist has urged that the Excise Inspector acting under the Opium Act, prior to introduction of Section 21 in the Opium Act in the year 1963, could not be deemed to be a police officer so as to make his report a report of the police officer within the meaning of Section 251 of the Code of Criminal Procedure. The next limb of the argument of the learned Counsel is that the case against the revisionist could not be tried by following the procedure specified u/s 251-A of the Code of Criminal Procedure but that the procedure prescribed 'by' Sections 252 to 259 of the Code should have been adopted. 5. I do not find any difficulty in accepting the contention that the report made by the Excise Inspector acting under the Opium Act cannot be deemed to be a police report within the meaning of Section 251-A of the Code of Criminal Procedure. I am fortified in this view by a Division Bench decision of the Calcutta High Court in the case of Premchand Khetry Vs. The State, AIR 1958 Cal 213 . In that case the view taken was that the report of an Excise Inspector could not be deemed to be a police report. A similar view was taken by the Rajasthan High Court in the case of Ghisia and Others Vs. State, AIR 1959 Raj 266 . I, therefore, hold that the report of the Excise Inspector acting under the Opium Act cannot be deemed to be a police report within the meaning of Section 251-A of the Code of Criminal Procedure. 6. A similar view was taken by the Rajasthan High Court in the case of Ghisia and Others Vs. State, AIR 1959 Raj 266 . I, therefore, hold that the report of the Excise Inspector acting under the Opium Act cannot be deemed to be a police report within the meaning of Section 251-A of the Code of Criminal Procedure. 6. Section 251 enjoins that in any case instituted on a police report the Magistrate shall, follow the procedure specified u/s 251-A and in any other case follow the procedure specified in the other provisions of this Chapter. The procedure applicable to the instant case was that which is laid down by the provisions of Chapter 21 other than the one laid down in Section 251-A. It is not in controversy and in fact it is apparent from the order of the Magistrate itself that the procedure that was applied to the instant case was the one provided for in Section 251-A and not that provided for by Sections 252 to 259 of the Code of Criminal Procedure. Learned Counsel for the revisionist has, therefore, urged that this has vitiated the entire trial and has resulted in disabling the revisionist from effectively defending himself according to law and thus has caused serious prejudice to him. 7. Section 251-A appears to be a provision to enable, cases based on police report, to be tried in a more simplified and expeditious manner while the other provisions, namely, Sections 252 to 259 prescribe procedure with a view to afford better opportunity to the accused to defend himself. It is not necessary for me in this case to deal at length with the difference in the two classes of procedure in order to demonstrate that the procedure u/s 251-A is comparatively summary than the procedure prescribed by the other provisions., If the case had been tried by adopting the procedure prescribed by Section 252 onwards the accused would have certainly, got opportunities thrice to cross-examine the prosecution witnesses. This could not be so under the procedure prescribed by Section 251-A. The use of incorrect procedure, therefore, resulted in depriving the accused of opportunities to defend himself more effectively, lam in respectful agreement with the view taken by the Rajasthan High Court in Ghisia and Ors. v. State (supra). This could not be so under the procedure prescribed by Section 251-A. The use of incorrect procedure, therefore, resulted in depriving the accused of opportunities to defend himself more effectively, lam in respectful agreement with the view taken by the Rajasthan High Court in Ghisia and Ors. v. State (supra). It was, however, urged on behalf of the State that this was only an irregularity which did not vitiate the trial. Reference was made to the decision of the Supreme Court in the case of Willie (William) Slaney Vs. The State of Madhya Pradesh, AIR 1956 SC 116 . One of the observations made in the aforesaid decision may be relevantly quoted at this stage: In our opinion, the key to the problem lies in the words under-lined (herein). Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once. 8. The facts of the present case fully attract the applicability of the above observation of their Lordships of the Supreme Court. In fact Section 251 contains a prohibition against applying the procedure of Section 251-A to a case which had not been instituted on a police report. The prohibition is purposeful and that purpose could not be defeated by violating the prohibition. 9. In view of the above circumstances I am satisfied that the order of conviction is liable to be set aside on that ground alone. 10. The prohibition is purposeful and that purpose could not be defeated by violating the prohibition. 9. In view of the above circumstances I am satisfied that the order of conviction is liable to be set aside on that ground alone. 10. The next question is whether the case could be sent back for fresh trial at this stage The occurrence, which is the basis of the prosecution, is said to have taken place some time in the year 1961 and the revisionist was taken into custody, sometime in that year. His prosecution has been continuing till 1967 because it appears that there was an order of remand made by the learned Sessions Judge at some stage. I do not consider it expedient in the interest of justice to direct a fresh trial of the case at this late hour. 11. The petition in revision is allowed, the order of conviction passed by the two courts below is set aside. The revisionist is on bail. He need not surrender. Fine if paid will be refunded to him.