MIRZA BAIG v. STATE OF MYSORE — 1972 DIGILAW 215 (KAR)

( 1 ) THE petitioner before this Court has been convicted under S. 32 of the mysore Excise Act, 1965 (hereinafter referred to as the Act), and sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 100 in default to undergo rigorous imprisonment for two weeks, by the learned judicial Magistrate, First Class (First Court, Civil Station) Bangalore, in CC. No. 899 of 1971. The appeal filed by the petitioner was dismissed by the learned First Additional Sessions Judge, Bangalore, who confirmed the conviction and sentence passed on the accused. In this revision petition, the Petitioner has challenged the legality and correctness of the said conviction and sentence passed on him. ( 2 ) SRI Abdul Wajid Khan, learned Counsel appearing on behalf of the petitioner has contended that the procedure adopted by the learned magistrate is illegal. The offence under S. 32 of the Act is punishable with rigorous imprisonment for two years and as such, the case should have been tried as a warrant case. The learned Magistrate in the instant case followed the summons procedure and this has resulted in grave prejudice to the accused. The learned Counsel has pointed out that the trial Court violated the provisions of S. 60a of the Act and the case should have been tried as a summary case, unless the Court gave reasons. In the instant case, the Court has not done so. The learned Counsel has strongly relied on the decisions rendered in Bandulal v. State, AIR 1962 Bom. 258 , public Prosecutor v. Vaijnath, AIR 1971 AP. 48 and State v. Bhaskaran, AIR 1971 Kerela 188 in support of his contention that if a warrant case is tried as a summons case, the whole trial is vitiated. ( 3 ) THE learned Government Pleader appearing on behalf of the state, on the other hand argued that when a warrant case is tried as a summons case, the proceedings cannot be said to be vitiated as the same is curable under S. 537 of the Crpc. He has relied on the decisions rendered in AIR. 1961 SC. 986, AIR. 1961 All. 590 and AIR. 1962 Guj. 231, in support of his contention. ( 4 ) IT has not been disputed before me that in the instant case the procedure prescribed for a warrant case should have been followed. He has relied on the decisions rendered in AIR. 1961 SC. 986, AIR. 1961 All. 590 and AIR. 1962 Guj. 231, in support of his contention. ( 4 ) IT has not been disputed before me that in the instant case the procedure prescribed for a warrant case should have been followed. The offence under S. 32 of the Act is punishable with imprisonment up to two years. Clause (w) of S. 4 Crlpc. states that a warrant-case means a case, relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding one year. S. 60a of the Act reads as follows:" 60a. Procedure to be followed by Magistrate: (1) In all trials for offences under this Act, the Magistrate shall follow the procedure prescribed in the Code of Criminal Procedure, 1898, for the trial of summary cases in which an appeal lies. Provided that if in respect of any case, the Magistrate for reasons to be recorded in writing, decides that it is not desirable to follow such procedure, he shall follow the procedure prescribed in Chapter XX or Chapter XXI of the said Code, according as the case is a summons case or a warrant case. "s. 262 which occurs in Chapter XXII Crlpc. relating to summary trials states thgt in trials under this Chapter, the procedure prescribed for summons-case shall be followed in summons cases, and the procedure prescribed for warrant-case shall be followed in warrant-cases except as hereinafter mentioned. "in the instant case, as already pointed out it is conceded on behalf of the State that the procedure for a warrant-case should have been followed. ( 5 ) THE important question for consideration in this case is whether by trying a warrant case as a summons-case, the trial is vitiated and whether the accused has been prejudiced by following such procedure. ( 6 ) IN Bandulal v. state (1) a Division Bench of the Bombay High court has pointed out that there is a substantial difference between the procedure prescribed for trial of summons-cases and those of warrant cases. Consequently when a warrant case is tried according to the procedure prescribed for summons cases the trial cannot be said to have been conducted in the manner prescribed by the Crlpc. and would therefore be vitiated. Such irregularity cannot be cured under S. 537. Their Lordships followed AIR. 1947 PC. Consequently when a warrant case is tried according to the procedure prescribed for summons cases the trial cannot be said to have been conducted in the manner prescribed by the Crlpc. and would therefore be vitiated. Such irregularity cannot be cured under S. 537. Their Lordships followed AIR. 1947 PC. 67 and AIR. 1957 SC. 737 and AIR. 1960 SC. 41, and AIR. 1962 SC. 690. Their Lordships held that the offence under S. 65 of the Bombay Prohibition Act being punishable with imprisonment extending up to three years, has to be tried es a warrant case in view of S. 262. Crlpc. read with S. 116 of the Bombay Act. When it is tried as a summons case the trial is vitiated and the irregularity cannot be cured under S. 537 of the Code of Criminal Procedure. ( 7 ) SIMILARLY in Public Prosecutor v. Vaijnath (2), a Division xbench of the said High Court has held that when a warrant case is tried as a summons case, it is an illegality and not an irregularity curable under s 537 of the Crlpc. Their Lordships in the case dissented from the contrary view taken in AIR. 1961 All. 590 and AIR. 1962 Guj. 231, ( 8 ) THE Kerala High Court in State v. Bhaskaran (3) has taken, the view that if a warrant case is tried as summons case, the proceedings are vitiated and they are not cured by S. 537 Crlpc. In para 6 of the judgment it has been observed as follows:" The procedures prescribed for warrant and summons cases are entirely different. Chapter XX Crlpc. lays down the procedure to be followed in summons cases and Chapter XXI the procedure in warrant cases. The procedure prescribed for summons cases is simpler and speedier than that prescribed for warrant cases. Warrant cases as they deal with offences graver than those in summons cases cannot be tried in the same simple and speedy fashion as summons cases greater opportunities for defence are offered to the accused in a warrant case than in a summons case. Unlike in a summons case a charge has to be framed in a warrant case and he has also a right to reserve cross-examination of the pro-ecution witnesses till a last stage. Unlike in a summons case a charge has to be framed in a warrant case and he has also a right to reserve cross-examination of the pro-ecution witnesses till a last stage. These are substantial and valuable rights which an accused has if the procedure prescribed in Chapter XXI is followed and he cannot be deprived of them. The difference between the two forms of trial is not therefore merely one of form importing mere irregularity curable under S. 537 Crlpc. On the other hand it is so vital that there is an almost indefeasible presumption of prejudice to the accused if a warrant case is tried as a summons case. . . . " ( 9 ) THE learned Government Pleader has relied on a Full Bench decision of the Allahabad High Court, Prem Das v. State, AIR 1961 All 590 FB. In the said decision their Lordships held that though a warrant case is tried as summons case, the irregularity is curable under S. 537 Crlpc. when the accused is not prejudiced by the adoption of such a procedure. Their Lordships observed that thev were satisfied in that case that no prejudice was caused by the Magistrate adopting the summons case procedure instead of warrant case procedure. ( 10 ) IN Mohanlal v. State, AIR 1962 Guj. 231 the learned Judge held that though the trying of a warrant case as a summons case, is an illegality, it does not vitiate trial and is curable by the provisions of S. 537 Crlpc. if it did not occasion any failure of justice. ( 11 ) IN Gopal Das v. Stale of Assam, AIR 1961 SC 986 , their Lordships of the Supreme court held that in a converse case where in a summons case a warrant procedure was followed by the Court, it is an irregularity which does not vitiate the proceedings and is curable by provisions of S. 537 Crlpc. when no prejudice to the accused is established. It may be pointed out that when a case which should have been tried as a summons case, is tried as a warrant case, the accused is given greater privileges and in such a case it will be difficult for the accused to contend that he has been prejudiced by following the warrant case procedure instead of summons case procedure. It may be pointed out that when a case which should have been tried as a summons case, is tried as a warrant case, the accused is given greater privileges and in such a case it will be difficult for the accused to contend that he has been prejudiced by following the warrant case procedure instead of summons case procedure. In the said decision their Lordships have laid down that they were satisfied that no prejudice to the accused is established and the same is curable under S. 537 Crlpc. ( 12 ) THE important question for consideration in this case is whether by the trial of the warrant case as a summons case, the accused has been prejudiced. Chapter XX Crlpc. deals with the procedure for trial of summons cases and Chapter XXI deals with the trial of warrant cases. The procedure to be followed in the above mentioned two classes of cases is entirely different. In summons cases, according to S. 242 Crlpc. , when the accused appears or is produced before the Magistrate, the particulars of the accusation have to be put to him and there is no need to frame formal charge. After the plea of the accused is recorded, evidence will have to be led if the accused does not plead guilty. But, so far as the warrant case is concerned S. 251a deals with the procedure, which the Court has to follow. Sub-clause (1) of S. 251a states that immediately when the accused appears before the Court, the Magistrate, at the commencement of the trial, should satisfy himself that the documents referred to in S. 173 have been furnished to the accused. The documents referred to in subsection (4) of S. 173 are : copy of the first information report recorded under s. 154, and all other documents or relevant extracts thereof on which the prosecution proposes to rely, including the statements of witnesses under s. 161. Copies of these documents have to be furnished to the accused. In a warrant case, as the prosecution is bound to furnish the statement of all the witnesses examined to the accused, the accused will know before-hand what exactly is the case he is called upon to meet. Statements u/s. 161 will be very important for the purpose of cross-examination of the prosecution witnesses. In a warrant case, as the prosecution is bound to furnish the statement of all the witnesses examined to the accused, the accused will know before-hand what exactly is the case he is called upon to meet. Statements u/s. 161 will be very important for the purpose of cross-examination of the prosecution witnesses. Very often, evidence given in the box is rejected because the witness had not mentioned earlier about it to the police when his statement was recorded during the course of the investigation. This is a very valuable right which the accused has in a warrant case, which he does not have in a summons case. It may also be pointed out that under sub-clause (2) of S. 251a, the accused has got an opportunity of addressing arguments and it is open to him to get a discharge at that stage itself. In summons case, there is no provision for getting a discharge. The Court can only acquit him at the end of the trial. Again, under the proviso to sub-clause (7) of S. 251a, the magistrate may permit the cross-examination of the witnesses to be deferred. These are all valuable rights which the accused has in a warrant case. These rights, he does not have in the trial of sumomns case. With great respect, this aspect of the matter has not been considered either in Prem das v. State (4) or in Mohanlal v. State (5), relied on by the learned Government pleader. I am therefore of opinion that in the instant case, as summons procedure has been followed instead of following the warrant procedure, the accused is bound to be prejudiced, because he will be denied the various privileges which the warrant procedure gives him. For the reasons mentioned above, with respect, I prefer to follow the rulings of the Bombay, Andhra and Kerala High Courts referred to earlier. ( 13 ) THIS point has been specifically urged on behalf of the accused before the lower-appellate Court. In paragraph 7 of the judgment, the learned Additional Sessions Judge of Bangalore has rejected this contention and has held, relying on the decision of the Sind Judicial Commissioner's court, reported in 31 Crl. L. J. 123, that S. 537 cures the irregularity committed by the trial Court. In paragraph 7 of the judgment, the learned Additional Sessions Judge of Bangalore has rejected this contention and has held, relying on the decision of the Sind Judicial Commissioner's court, reported in 31 Crl. L. J. 123, that S. 537 cures the irregularity committed by the trial Court. The learned Sessions Judge has stated that the trial Court has recorded the evidence of each of these witnesses in detail, and afforded opportunity to the accused to cross-examine the witnesses and that the accused had a fair trial, and that the accused had not in any way been prejudiced, and that S. 537 cures the defect in the procedure. It is not possible for me to agree with the views of the lower appellate court. As already stated, by not following the warrant procedure, the accused has been gravely prejudiced as he did not have the advantage of the various privileges pointed out above. The Kerala High Court in state v. Bhaskaran (3) has pointed out that greater opportunities for defence are offered to the accused in a warrant case than in a summons case. Unlike in a summons case, a charge has to be framed in a warrant case and he has also a right to reserve cross-examination of the prosecution witnesses till the last stage. These are substantial and valuable rights which an accused has if the procedure prescribed in Chapter XXI is followed, and he cannot be deprived of them. ( 14 ) FOR the reasons mentioned above, I am of opinion that the conviction and sentence passed on the appellant have to be set aside, I, therefore, aallow this revision petition, set aside the conviction and sentence passed on the petitioner-accused, and remand the case for re-trial. The learned Magistrate is directed to follow the procedure prescribed for a warrant case and dispose of the case expeditiously. --- *** --- .