PYARU SAB v. STATE OF MYSORE — 1972 DIGILAW 264 (KAR)

( 1 ) THE petitioners herein were convicted of an offence under S. 34 of the mysore Excise' Act, 1965 (hereinafter referred to as the 'act'), and sentenced to R. I. for six months each and to pay a fine of Rs. 100 with a default sentence in CC. No. 774 of 1971 on the file of the Judicial Magistrate, First court, Civil Station, Bangalore. Their appeal to the First Additional Sessions judge, Bangalore in Crl. Appeal No. 44 of 1972, is also dismissed. ( 2 ) THE petitioners have challenged both the convictions and sentences. The case of the prosecution is that on 14-2-1971 by about 9 A. M. the petitioners were found transporting illicit liquor in a Ford Car No. MYB 2145 on the public road near NGEF. They were apprehended by the officials of the Excise Department and charged under Ss. 34 and 38a of the act. After trial, they were convicted and sentenced as aforesaid. There was a 4th accused in the case, who was the owner of the car. Since he has been acquitted, I am not concerned with his case in the present revision. On behalf of the petitioners, the following two contentions were urged by Sri S. Nabhirajiah, the learned Advocate. They are : (1) That the recording of the statements of the petitioners-accused under S. 342 Crpc (hereinafter referred to as the 'code') does not satisfy the requirement of that section and the petitioners, therefore, have been prejudiced by such irregularity; (2) That having regard to the provisions of S. 60a of the Act and S. 260 of the Code, it was the duty of the Magistrate to have tried the case in accordance with the ordinary procedure prescribed for the trial of warrant cases in the Code, and the trial by summary procedure therefore, would be clearly illegal. ( 3 ) IN regard to the first contention, the learned Counsel invited attention to the substance of the question put to the petitioners in purported compliance with S. 342 of the Code. The question, no doubt, has been worded in the form of a charge, but the contents thereof clearly refer to the facts and circumstance alleged against the petitioners. Ordinarily, it is true, that any such examination accompanied by proof of prejudice caused to the petitioners-accused would be sufficient to vitiate the convictions. The question, no doubt, has been worded in the form of a charge, but the contents thereof clearly refer to the facts and circumstance alleged against the petitioners. Ordinarily, it is true, that any such examination accompanied by proof of prejudice caused to the petitioners-accused would be sufficient to vitiate the convictions. In the instant case, no prejudice has been shown to have resulted on account of such irregularity committed or defect in the procedure followed by the learned Magistrate. But in view of the two enunciations of the Supreme court, in the cases cited by the learned Public Prosecutor, this contention, has to be rejected. ( 4 ) THE first of the cases is Moseb Kaka Chowdhary v. State of W. B. AIR. 1956 SC. 536. The relevant enunciation reads thus : a judgment is not to be set aside merely by reason of inadequate compliance with S. 342, Crpc. Clear prejudice must be shown. Where accused is represented by Counsel at the trial and in appeal, it is up to the accused or his Counsel in such cases to satisfy the Court" that such inadequate examination has resulted in miscarriage of justice. If the Counsel is unable to say that his client had in fact been prejudiced and if all that he could, urge is that there was a possibility of prejudice, that is not enough. " the next case is C. T. Muniappa,n v. State of Madras AIR. 1961 SC. 175. the enunciation in question is this : held that even if there was any defect in the examination of the accused under S. 342 Crpc, the defect amounted merely to an irregularity and was not such as to call for interference with the orders passed by the Courts below especially when no complaint on this ground was raised before the High Court. ( 5 ) TURNING now to the other contention, in elaboration of it, the learned counsel submitted thus: Under S. 260 of the Code, in any case which is punishable with imprisonment for a term exceeding six months the summary procedure enjoined therein ought not to be followed. Although S. 60a of the Act enjoins that all the trials relative to the offences under that act ought to be tried summarily the inhibition contained in S. 260 of the code would nevertheless be effective. Although S. 60a of the Act enjoins that all the trials relative to the offences under that act ought to be tried summarily the inhibition contained in S. 260 of the code would nevertheless be effective. In the instant case the petitioners were tried for an offence under See. 34 of the Act and, therefore, it would be illegal for a Magistrate to try such an offence summarily. I am not persuaded to accept this contention. ( 6 ) THE relevant portion of S. 60a of the Act reads thus : 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; from 'the above provision, particularly the phrase In all trials for offences under this Act", it is plain that all offences under the Act could be tried summarily by following the procedure prescribed for trial of such cases in the Code, subject to the exception made in the proviso for trial of any of such cases in accordance with the regular procedure, after the magistrate records his reasons for adopting such a course. On a true interpretation of the said provision in my judgment, it has merely made provision for adoption of only the procedural provisoins of the Code governing the trial of cases summarily and nothing more. As regards the power, it is expressly conferred by making provision for the trial of all cases under the Act. ( 7 ) IT has, therefore, to be seen as to what are the provisions in the Code which have relevance to procedure governing trial of cases summarily. Chapter XXII, containing Ss. 260 to 265, of the Code, almost exclusively deals with the law governing such summary trials. Not all of 'these provisions relate to procedure, in the strict sense. To my mind the sections relevant for the present discussion are 260, 262 and 264 only. Threefore, a brief analysis of these, sections would be relevant. Section 260 provides for the power for trial of offences summarily by the District Magistrates and other Magistrates specially empowered in this behalf. The offences which could be so tried have been eumerated therein. In the second sub-clause (a) of sub-sec. Threefore, a brief analysis of these, sections would be relevant. Section 260 provides for the power for trial of offences summarily by the District Magistrates and other Magistrates specially empowered in this behalf. The offences which could be so tried have been eumerated therein. In the second sub-clause (a) of sub-sec. (1) of that section, it is provided that such Magistrates may try all or any of the offences not punishable with death, imprisonment for life, or imprisonment for a term not exceeding six months. It is on the basis of this provision that an argument has been sought to be constructed on behalf of the petitioners that their trial in a summary way would be illegal. ( 8 ) IT seems to me that this provision has greater relevance to power and jurisdiction exercisable by a Magistrate than to procedure. Further this clause is merely descriptive of all the offences triable by a Court summarily, in addition to those specifically enumerated in that section. In terms, it merely invests the Magistrate specified therein with jurisdiction to try cases for offences enumerated therein and does not prescribe for the manner in which such offences ought to be tried and disposed of. The latter question, in my view, will be one fallnig within the realm of procedure within the meaning of S. 60a of the Act. In any event, as earlier observed, in view of the express provision made in S. 60a, whereby all offences under the Act have been made triable by summary procedure, there is no question of the said clause in the Code controlling the former provision. In otherwords, S. 60a of the Act has got an overriding effect. In the above view of the matter, only a passing reference to the two other sections of the Code, referred to earlier, is called for, only with a view to note that in the Code separate provision has been made in regard to such procedure in regard to trial of appealable cases, as the present one, and that they only are the provisions referred to in and adopted by section 60a of the Act. ( 9 ) SECTION 262 of the Code provides that in summary trials the procedure to be followed in regard to summons cases and warrant cases shall be the same as prescribed for similar cases in the other parts of the Code, subject to exceptions wherever referred to. In addition to it, there is a limitation imposed, on the power of such Magistrates to pass any sentence of imprisonment, in that the same is limited to a maximum term of three months. The last provision to which a reference may be made in S. 264. This provision, incidentally refers to S. 263 of the Code which prescribes for the record to be prepared in non-appealable cases triable under Chap. XXII. S. 264 provides that in appealable cases the Court trying a case summarily must record the substance of the evidence and also a judgment before passing sentence, in addition to recording particulars enjoined by S. 263 of that Chapter. In view of the above, this contention must fail and is accordingly rejected. ( 10 ) LASTLY, it is contended on behalf of the petitioners that the sentence is excessive in addition to that being illegal. The argument is that such illegality stems from the fact that S. 34 of the Act has not in express terms provided for a sentence of 'rigorous imprisonment'. If this provision is compared and contrasted with S. 32 of the same Act, it would be clear that the omission to refer to 'rigorous imprisonment' by the Legislature is deliberate. In my opinion, this submission must be accepted as wellfounded. ( 11 ) IT is plain from the provisions of S. 32 that the Legislature has taken care to use the word 'rigorous' as qualifying 'imprisonment' whereas in s. 34 such has not been the case. It is also seen, by a comparison of he said two provisions, both of which prescribe for penalties, that the Legislature has viewed offences falling under Sec. 32 as being of a far more serious character than those falling under S. 34. The sentence on the petitioners therefore, has to be modified into one of simple imprisonment. It is also urged that the sentence is excessive. It seems to me prima facie to be so. The owner of the Motor Vehicle, used in the commission of the offences, has been acquitted in appeal by the learned Sessions Judge. The sentence on the petitioners therefore, has to be modified into one of simple imprisonment. It is also urged that the sentence is excessive. It seems to me prima facie to be so. The owner of the Motor Vehicle, used in the commission of the offences, has been acquitted in appeal by the learned Sessions Judge. In the facts and circumstances of the case, the petitioners appear to be mere instruments in the hands of others. It is not also shown whether the petitioners had at any time previously been convicted for an offence under this Act. For all these reasons, I am of opinion that a minimum statutory sentence of three months simple imprisonment would meet the ends of justice. ( 12 ) THE terms of the sentences of imprisonment in respect of all the petitioners, therefore, are reduced and modified to three months simple imprisonment. The sentence of fine, however, remains undisturbed, subject to a modification that the defaut sentences shall be of simple imprisonment only. Subject to the above modification, regarding sentences, the petition is dismissed. --- *** --- .