Arjan Dass vs Market Committee, Hissar

Kulwant Singh Tiwana, J.—Two complaints were filed against the Petitioner of Criminal Revision No 122 of 1978 (Arjan Dass v. The Market Committee, Hissar), and Criminal Revision No. 124 of 1978 (Arjan Dass v. The Market Committee, Hissar) by the Respondent, u/s 31(sic) of the Punjab Agricultural Produce Market Act, 1961, in the Court of the learned Chief Judicial Magistrate, Hissar. Both the revision petitions will be disposed of by this judgment as they involve the same question of law,

It is admitted by both the parties that the offence for which the complaints made against the aforesaid Petitioner were triable as a summons case, because the offence carries a maximum sentence of Rs 200/. It has been hold by both the Subordinate Courts below that the procedure adopted by the learned Chief Judicial Magistrate in the trial of cases was that of a summons case.

On an objection by the Petitioner, the learned Chief Judicial Magistrate did not find it a fit case, on reasons recorded by him in hit order dated June 4, 1976, to put the substance of accusation as required by Section 251 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) the Petitioner. He, therefore, discharged the Petitioner. The Market Committee, Hissar, filed revisions against the orders of discharge before the learned Sessions Judge, Hissar. The Learned Sessions Judge found that the order of discharge were wrong in law as they were passed in summons cases, and for that reason, revisions before him were not competent. Utilising the provisions of Section 401(5) of the Code, which empowers the High Court to be recorded, for reasons to treat a revision as an appeal, the learned Sessions judge converted (those revisions into appeal and heard the cases. He accepted the appeals and setting aside the orders of discharge by the learned Chief Judicial Magistrate remanded the cases before him for trial

These revisions have been filed by the Petitioner against the orders of the learned Sessions Judge.

the main ground urged by the learned Counsel for the Petitioner is that the orders passed by the learned Chief Judicial Magistrate, which were wrongly recorded as discharge, was as a matter of fact orders of acquittat(sic). The second argument is that no revision was competent against that order before the learned Sessions Judge and that the learned Sessions Judge was not competent to convert the revisions Into appeals.

The learned Magistrate has used the word "discharge" in his orders The question is whether a person standing a trial in a summons case, for which the procedure as contained in Chapter XX of the Code is applied, can be discharged. The Code has three procedures for the trial of cases by the Magistrate (i) the procedure, for the trial of warrant cases as contained in Chapter XIX of the Code (ii) for summons cases as contained in Chapter XX, and (iii) for summary cases. We are not concerned with the last procedure in the present cases. A look at the provisions contained in Chapter XIX shows that it has two parts ; one is concerned with the cases instituted on a police report and the other deals with cases instituted otherwise than on police report. Chapter XIX contains Sections 239 to 210(sic). Section 239 in part ''A'' deals with the cases wherein the Magistrate trying a case on examining the documents sent with the report u/s 173 of the Code, has to discharge the accused in case he finds the charge to be groundless The next section is Section 240. When on examination of the material referred in Section 239 of the Code, the Magistrate finds that there is a ground to presume that the accused has committed the offence triable by him, he shall frame a charge in writing against the accused. Similarly, in part ''B'' Section 244 provides that after the evidence u/s 244 of the Code has been recorded and the Magistrate finds that the evidence is such, which if unrebutted, would warrant a conviction, ho shall discharge the accused. On the second ground that the charge is groundless the accused is also entitled to a discharge Section 246 of this Chapter provides that when there are grounds for presuming, on the basis of the evidence recorded, that the accused has committed the offence, the Magistrate shall frame a charge. These are the main provisions in chapter XIX which concern with the framing of a charge and the discharge of an accused in a warrant case

7 Chapter XX which provides for the procedure for trial of summons cases, contains Sections 251 to 259. Section 251 provides that when an accused it brought before the Magistrate, the particulars of the offence of which he is accused of, shall be stated to him. After that, his plea of guilt has to be recorded and in case of examination of evidence u/s 255 of the Code, contained in this Chapter, shall acquit him if in his opinion the accused is not guilty of the offence. When a comparative study of Chapters XIX and XII(sic) is made, it makes it clear that charge has be framed only in a warrant case when the charge is not framed, the accused has necessarily to be discharged This shows that the words "charge" and "discharged", are inter-linked and inter dependent and have been used only in that procedure where the charge has to be framed that is in warrant cases. Where the law does not provide for the framing of the charge there can no question of discharge. In summons cases, there cannot be a question of discharge as the provisions do not contain such a word. The stage of acquittal comes alter the framing of the charge u/s 251 of the Code only substance of accusation has to be stated. Technically, it might be taken akin to the framing of the charge, but when the question of discharge is to be considered relatively with this provision, it cannot be equated with the framing of the charge I draw support from Palchami and Others Vs. Paramasiva Gounder, in which it was held as under:-

In a summons case there is no question of discharge. It is either acquittal or dismissal u/s 203(sic) Criminal Procedure Code. The trial court therefore could have only either passed an order of dismissal u/s 203 or an acquittal u/s 245 in a summons case. It cannot pass an order of discharge in a summons case. if it says that it discharges the accused in law it means acquittal.

The word " discharge" has been improperly used by the learned Chief Judicial Magistrate. In reality, the effect of this discharge in such cases is that of acquittal.

The next question which has been mooted between the parties is as to whether a revision was competent against an order of acquittal. Section 378 (4) of the Code prohibits the filing of a revision where a right of appeal accrues to a party. The revisions therefore could not be filed by party which had a right of appeal.

9 The learned Sessions Judge went wrong in assuming the powers of the High Court u/s I(sic) (5) of the Code. This provision vests the power only in the High Court to convert the revision into an appeal if it is satisfied on an application made to it that the revision was filed because of some erroneous belief in place of appeal. The provision is as under:-

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.

There is no power under the Code by which the learned Sessions Judge could assume the powers of the High Court u/s 401(5) of the Code to decide these cases. His action was wrong in law and he over stepped his jurisdiction in assuming that power, which the law does not give him.

For that reason, the orders of the learned Sessions Judge under revisions, cannot be sustained. The revisions are, therefore, accepted, the orders, under revisions are set aside and the orders of the learned Chief Judicial Magistrate, which though termed as discharge tantamount to acquittal, are stored