ORDER 1. The two petitioners herein were the accused in a petty case for offence under Sec.51(A) of the Kerala Police Act (for short ‘the Act’). When they pleaded guilty, they would never have realised that an important legal question would sprout from their case Nor did the Magistrate who passed a fleebite sentence on them (a fine of Rs.50 each) think that the initiative step taken by him in the case would ever be exposed to a criticism that the said step has no support of law. Sri K.A. Jaleel, counsel for the petitioners, confessed at the outset that the offence indicted does not possess that gravity which deserves the matter being brought to this Court, but what prompted him to bring it here is his firm opinion that the question involved is of some topical importance. 2. Facts are simple: On 19.3.1983 the petitioners were produced before the Additional Judicial Magistrate of the First Class (II), Ernakulam, by the Harbour Crime Branch Police together with a report of the Sub Inspector that the petitioners were found drunk and behaving in a disorderly manner in a public place on the previous day and hence they committed the offence under Sec.51 (A) of the Act The learned Magistrate straightaway numbered the case as ST. 217 of 1983. As the petitioners were present in Court, the Magistrate recorded their plea of guilty. Accordingly, he convicted the and sentenced them. 3. The contention of the learned counsel is that the Magistrate has no jurisdiction to ask the petitioners whether they plead guilty, without issuing summons to them first. The learned Public Prosecutor sought support for the aforesaid action of the learned Magistrate from Sec.251 of the Code of the Criminal Procedure (for short ‘the Code’). That section is in Chapter XX of the Code which contains provisions for “Trial of Summons-Cases by Magistrate”. The learned Public Prosecutor sought support for the aforesaid action of the learned Magistrate from Sec.251 of the Code of the Criminal Procedure (for short ‘the Code’). That section is in Chapter XX of the Code which contains provisions for “Trial of Summons-Cases by Magistrate”. Sec.51 (A) of the Act makes the offence punishable with a fine of fifty rupees or imprisonment for a period of eight days There is no dispute that the case involving the said offence is only a summons case Sec.251 of the Code says that “when in a summons-case the accused appears or is brought before the Magistrate the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty.” According to the learned Public Prosecutor, the above provision empowers a Magistrate to ask the accused whether he pleads guilty when the accused “appears or is brought before the Magistrate”. It is contended that appearance before the Magistrate includes physical presence of the accused and the words “brought before the Magistrate” include instances where the accused is brought by the police before the Magistrate, irrespective of whether it is in pursuance of a warrant of arrest. 4. It is not disputed that the offence under Sec.51 (A) of the Act is a non-cognizable offence (vide 3rd division in Part-II of the First Schedule of the Code). 4. It is not disputed that the offence under Sec.51 (A) of the Act is a non-cognizable offence (vide 3rd division in Part-II of the First Schedule of the Code). No police officer can arrest a person involved in a non-cognizable offence without a warrant, unless it be a case where be refuses to give his name and residence as provided in Sec.42 of the Code So the question of arrest and its follow-up need not be considered in this revision Chapter XIV of the Code is titled “Conditions Requisite for Initiation of Proceedings” The commencing section in the Chapter ( Sec.190 ) enumerates the four sources of information’s regarding commission of offences on which the Magistrate is empowered to take cognizance of the offence Either upon receiving a complaints or upon a police report, or upon information received from any person or upon his own knowledge that an offence has been committed, the Judicial Magistrate can take cognizance of the offence Chapter XV is the procedure for taking cognizance of offence on complaint Chapter XIV is so set in the Code as to indicate that any step or action of the Magistrate envisaged in the Code subsequent to Chapter XV are all post cognizance actions The title to Chapter XVI is significant: “Commencement of Proceedings Before Magistrate” Here the word “proceedings” is evidently used for the steps to be taken subsequent to taking cognizance of an offence Sec.204 is the first section in that Chapter. Sub- Sec.(1) is extracted below: “If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (If he has no jurisdiction himself) some other Magistrate having jurisdiction.” The sub-section casts an obligation on the Magistrate who takes cognizance of the offence to pause tor a moment and decide whether in his opinion “there is sufficient ground for proceeding”. It involves application of his mind if he is of opinion that there is no ground to proceed, he can decline to go further. It involves application of his mind if he is of opinion that there is no ground to proceed, he can decline to go further. But if he decides to proceed, there appears to be no other option for him than issuing a summons to the accused in a summons-case and a warrant or summons (as he thinks fit) in a warrant case The summons is issued for securing the attendance of the accused The object of issuing warrant or a summons is “to cause to be brought or to appear at a certain time before such Magistrate”. Sec.205 of the Code shows that “appearance” need not necessarily be by physical presence Appearance can be allowed even without personal attendance, by permitting him to appear by his pleader. Personal attendance, thus, is only one of the modes of appearance of an accused in a Court Sec.206 deals with special summons in cases of “petty offences”, which means an offence punishable only with a fine not exceeding one thousand rupees When Sec.251 of. the Code speaks of the appearance of the accused, or his being brought before a Magistrate, the legislature intended that the appearance of the accused should be in answer to the issue of a summons, and bringing of the accused should be in pursuance of a warrant issued by the Magistrate as contemplated in Sec.204 of the Code. It the Magistrate has not applied his mind and decided to proceed with the case he cannot issue a summons or warrant His decision to proceed need not be by writing any formal order. It the Magistrate has not applied his mind and decided to proceed with the case he cannot issue a summons or warrant His decision to proceed need not be by writing any formal order. If the Magistrate orders for the issue of summons or warrant it gives rise to an inference, that he has decided to proceed If he does not issue a summons or warrant, the inference is that he has not yet decided to proceed The corollary is that, if a Magistrate does not issue summons or warrant to an accused, the Magistrate cannot state the particulars of any offence to an accused who happens to be present before him, and ask him whether he pleads guilty or not If the accused is present in Court after the issue of summons, though the summons has not been served on him, the Magistrate can presume that the accused is in the know of the issue of summons (or warrant as the case may be) and in that case it is open to the Magistrate to proceed further. But before he states the particulars of the offence to the accused, he has to comply with one more formality If the case is instituted on police report the Magistrate shall supply a copy of the police report (and also copies of other documents, if any, contemplated in Sec.207 of the Code) In a case instituted on complaint, every summons or warrant shall be accompanied by a copy of such complaint That formality is provided in Sub- Sec.(3) of Sec.204 of the Code An accused can be asked to whether he pleads guilty or not only after the above steps are completed Supply of the copy of the police report to the accused is intended to afford him a reasonable opportunity to decide as to the course of action to be adopted by him, whether to plead guilty or to say that he has a defence to make. 7. In Raj Kumar Chauhan v. The State Raj Kumar Chauhan v. The State A.I.R. 1967 Tripura 13 the Judicial Commissioner held that “even when the accused person is present in Court without any process having been issued against him, there is necessity ox service of summons, to give notice to the accused what charge he is being called upon to answer. That the Magistrate has to explain the substance of accusation to him by compliance of Sec.242 of Criminal P.C., is not a complete substitute for that notice, because the right to be defended connotes that upon such notice the accused should come prepared in his mind if he will defend or plead guilty”. A single Judge of the Calcutta High Court had considered the position in a similar situation State v. Raghuram State v. Raghuram A.I.R. 1964 Cal. 445. A driver and a conductor of a motor vehicle were arrested by a Sub Inspector and brought before the Mobile Court with the report alleging that they committed the offence under Sec.112 of the Motor Vehicles Act The Magistrate directed issue of summons and recorded that both the accused appeared before him and on their own plea of guilty he convicted both of them The illegality of the conviction was subsequently challenged Amaresh Roy, J., who delivered judgment in the said case observed: “even when the accused person was present in Court without any process having been issued against him, there was necessity of service of summons, to give notice to the accused what charge he was being called upon to answer.” 6. in the aforesaid two decisions, facts would indicate that summons had been issued to accused Even then the Courts did not uphold the conviction for want of compliance with the formality of serving a copy of the accusation on the accused in this case the position is still worse The Magistrate did not consider the question whether he should proceed, which can be inferred from the non-issuance of summons to the petitioners The Magistrate acted without jurisdiction when he asked the petitioners whether they plead guilty or not Therefore, the conviction based on the plea of the accused and the consequent sentence are unsustainable in law. Hence this revision is allowed The conviction and sentence are set aside The fine, if paid, shall be refunded to the petitioners. Petition allowed.