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2001 DIGILAW 1548 (MAD)

The Public Prosecutor (A. P. ) v. Vaijnath

2001-11-30

NAKASIMHAM, VENKATESAM

body2001
Order.- This appeal by the State gives rise to an important question of law as to whether the entire trial vitiates if the Magistrate follows summons procedure in a warrant case. Admittedly, the maximum sentence leviable for an offence punishable under section 7 of the Essential Commodities Act, 1955, for which the accused has been charged in the present case, being three years imprisonment, the procedure which the Magistrate has to follow is warrant procedure. The trial Magistrate adopted summons procedure and acquitted the accused on merits, against which the present appeal has been filed. The learned Public Prosecutor contended that the unreported decision of Basireddi, J., in Criminal Revision Case No. 299 of 959, holding that the adoption by the Magistrate of summons procedure instead of warrant procedure in a case arising under section 9-A of the Opium Act, where the maximum sentence of imprisonment prescribed being one of three years, was not a mere irregularity curable under section 537, Criminal Procedure Code, but amounted to an illegality invalidating the trial giving rise to an irrebuttable presumption of prejudice, does not represent the correct legal position, in view of the recent decision of the Supreme in Gopal Das v. State of Assam1, in which it was held that the adoption by the Magistrate of warrant procedure in a summons case was an irregularity curable under section 537, Criminal Procedure Code, unless prejudice has been established. In Mohanlal v. State2, the principle enunciated by their Lordships of the Supreme Court in Gopaldas v. State of Assam1, has been applied to a converse case like the one with which we are concerned and the view of the Gujarat High Court is in support of the contention of the Public Prosecutor. The Full Bench of the Allahabad High Court, in Prem Das v. State3, has held that the defect in adopting summons procedure in a warrant case is curable under section 537, Criminal Procedure Code, and it does not amount to an illegality vitiating the trial. But in Bandulal v. State4, a Division Bench of the Bombay High Court has taken the same view expressed by a single Judge of this Court, referred to above. The Bombay High Court does not refer to the decision of the Supreme Court in Gopal Das v. State of Assam2, whereas the Gujarat High Court has considered and applied the principle enunciated by the Supreme Court. The Bombay High Court does not refer to the decision of the Supreme Court in Gopal Das v. State of Assam2, whereas the Gujarat High Court has considered and applied the principle enunciated by the Supreme Court. In view of the importance of the question involved and the conflicting authorities indicated above, I feel this is a fit case to refer to for the opinion of a Division Bench, to have an authoritative pronouncement, on the following question: - Whether the adoption by the trial Magistrate of Summons Procedure in a warrant case amounts to an illegality vitiating the entire trial or only an irregularity curable under section 537, Criminal Procedure Code ? The office is directed to place the matter before the Honourable Chief Justice for appropriate orders. In pursuance of the above said order this appeal came on for hearing before the Division Bench (Narasimham and Venkatesam, JJ.). Public Prosecutor, for Appellant. Chandrakant Rao, Mohd. Abdul Khader and Narayan Patil, for Respondents. The Judgment of the Bench was delivered by Narasimham, J.- The question referred to us is whether the adoption by the trial Magistrate of Summons Procedure in a warrant case amounts to an illegality vitiating the entire trial or only an irregularity curable under section 537, Criminal Procedure Code. There has been a consensus of judicial opinion on this question referred ever since the decision of the Privy Council in K.A. Subrahmavya Aiyer v. Emperor.5 The question did not directly arise in that case, but the principle was enunciated that the disobedience to an express provision as to a mode of trial could not be regarded as a mere irregularity. That was reiterated in Pulukuri Kotayya and others v. Emperor.1 The pronouncement in the later case was more clear that when a trial was conducted in a manner different from that prescribed by the Code, the trial was bad and no question of curing an irregularity arose. The question now referred to us has, however, been directly answered in a series of cases. It is to refer to Emperor v. Chinnapayan2, and the cases thereafter. That was a case where a warrant case was tried as a summons case and the accused was convicted. The learned Judge set aside the conviction holding that that was something more than an irregularity and that the accused might have possibly been prejudiced by the procedure adopted by the Magistrate. That was a case where a warrant case was tried as a summons case and the accused was convicted. The learned Judge set aside the conviction holding that that was something more than an irregularity and that the accused might have possibly been prejudiced by the procedure adopted by the Magistrate. The other cases which have held the same view are Gaya Prasad v. Emperor3, Sufal Golai v. Emperor4, and Bandulal Balaprasad v. The State5. The said decisions have held the view that trial was not conducted as prescribed by the Code when a warrant case was tried as a summons case and the trial was therefore vitiated. A different view, however, came to be expressed by a Full Bench of the Allahabad High Court in Prem Das v. State". While holding that an illegal procedure was adopted when a warrant case was tried as a summons case, the learned Judges however took the view that that was a curable irregularity as no prejudice was caused to the accused by the adoption of a wrong procedure. Mohanlal Nandalal Sharma and another v. State7, said in somewhat similar terms that the adoption of procedure prescribed for summons cases by the Magistrate in a warrant case was a mere irregulrity and did not vitiate the trial and was curable by the provisions of section 537, Criminal Procedure Code, if it did not occasion any failure of justice. It is therefore clear that the two later decisions have struck a discordant note in conflict with the observation of the Privy Council in N.A. Subrahmanya Iyer v. Emperor8, and Pulukuri Kotayya and others v. Emperor1. The learned Judge of the Gujarat High Court appears to have relied on Gopal Das Sindhi and others v. State of Assam and another9, which we may appropriately peruse in this context; "It is true that after the amendment of the Criminal Procedure Code, an offence under section 448 is triable as a summons case and Mr. Goswami adopted the procedure prescribed for a case triable as a warrant case. Goswami adopted the procedure prescribed for a case triable as a warrant case. We are, however, of the opinion that this irregularity does not vitiate the proceedings and is curable by the provisions of section 537 as no prejudice to the accused has been established in the case." With great respect, we are unable to find support for the decision of the learned Judge that the converse follows: We cannot regard it as an authority for the position that when a warrant case is tried as a summons case, the trial is not vitiated but curable by the provisions of section 537 and that the accused has to establish that prejudice was caused to him. In cases where the trial does not comply with the Code, an indefeasible presumption of prejudice may be drawn. This Court has held in C.R.C. No. 299 of 1959 that where a warrant case is tried as a summons case, the trial was vitiated and gave rise to an irrebuttable presumption of prejudice. Having regard to the preponderating view taken in the many decisions, which is consistent with the principle enunciated by the Privy Council, our opinion is that when a warrant case is tried as a summons case, it amounts to an illegality and not an irregularity curable under section 537, Criminal Procedure Code. The reference is answered accordingly and the case will be posted for hearing. In pursuance of the above said order this appeal came on for hearing before Kondaiah, J. The Court delivered the following Order.- In view of the opinion expressed by the Division Bench that by following the summons procedure in a warrant case the entire trial is vitiated, the judgment of the Court below acquitting the accused cannot stand and is liable to be set aside. Hence I hereby set aside the judgment of the Court below acqutting the accused as the very Procedure followed by the lower could Court is illegal and unsustainable. The next question that arises for determination is whether the facts of the case justify a retrial. Taking into consideration the fact that the offence is alleged to have taken place in the year 1964 and on the facte and in the circumstances I do not feel it just and proper to direct de novo retrial of the case at this stage. In the result, the appeal is partly allowed. Taking into consideration the fact that the offence is alleged to have taken place in the year 1964 and on the facte and in the circumstances I do not feel it just and proper to direct de novo retrial of the case at this stage. In the result, the appeal is partly allowed. G.S.M. ---- Appeal partly allowed.