Bhubneshwar Prashad vs Emperor

Varma, J.—The petitioner Bhubneshwar Prashad who at the time of the occurrence was a mukhtar practising at Monghyr has been convicted u/s 47(a), Excise Act, and sentenced to pay a fine of Rs. 200, in default to undergo six months rigorous imprisonment by a Magistrate of the First Class of Bhagalpur. There were two other accused with him who were convicted under the same section but sentenced to six months rigorous imprisonment each. On appeal the learned Sessions Judge confirmed the conviction and the sentences passed upon the various accused. Bhubneshwar Prashad, mukhtar, alone has come up in revision before this Court. Mr. Yasin Yunus appearing on behalf of the petitioner has taken me through the evidence in the case to show that his client is not guilty of the offence. He has also raised a point of law and that is that the provisions of Section 242, Criminal P.C, were not complied with. In view of the order that I propose to pass it is not necessary for me to go into the various discrepancies and the criticisms advanced by Mr. Yunus. When the rule was issued by Noor, J. he drew the attention of the Magistrate particularly to this ground taken in the petition for revision. The learned Magistrate has sent an explanation which runs as follows:

The provision of Section 242, Criminal P.C., was duly complied with. The particulars of the offence were stated to the accused.

While forwarding this explanation of the Magistrate the learned District Magistrate has made the following remarks:

I have the honour to forward the original record of the case and to say that the Magistrate reports that he complied with the provisions of Section 242, Criminal P.C., but it is unfortunate he did not record the question put and the answers given in writing. His report on the point is enclosed. I have nothing further to add.

Looking at the order-sheet of the learned Magistrate it appears that the report of the Excise Officer was received on 18th December 1935 and on the third date the charge-sheet was received and the case was transferred to Mr. S.N. Lal, the gentleman out of whose judgment this petition arises. The fourth order dated 8th January 1936 runs as follows:

Not a single prosecution witness present. Summon them for 25th January 1936. The accused on bail of Rs. 250 each. They plead not guilty.

Now Section 242 runs as follows:

When 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 if he has any cause to show why he should not be convicted, but it shall not be necessary to frame a formal charge.

Now, from the order sheet it appears that only the second part of Section 242 has been complied with, if at all; that is the accused was asked if he pleaded guilty to the charge or not and the petitioner pleaded not guilty. There is nothing in the record to indicate that the substance of the charge was explained to the petitioner which is required by the first part of Section 242. The Magistrate in his explanation says that the particulars of the offence were stated to the accused. He might have done so, but it would have been better if he had indicated in the order-sheet that both parts of the section were complied with which would have prevented the petitioner from raising this point of law. It is not necessary to record the whole of the conversation that passed between the Magistrate and the accused but there must be some indication in the record as to what has been done and from the order-sheet in this case it appears that the accused merely pleaded not guilty to the charge whatever it was and we do not know what was the question put to the accused. The case in Gopal Krishna Saha v. Mati Lal Singh 1927 Cal 196 is an authority for the proposition that non-compliance with the provisions of Section 242 vitiates the trial.

The learned Government Pleader has relied upon various decisions of other Courts which require to be noticed. The first case relied upon is Lahani v. Khushal 1932 Nag 127. This was a case in which it appears from the judgment that the Court was uncertain whether the Magistrate did omit to mention to state the particulars of the offence to the accused. The records contain no note of the particulars of the offence being mentioned to the accused and there it was held that it was a mere irregularity. The learned Judge further referred to the case in Abdul Rahman v. Emperor 1927 PC 44 and was of opinion that perhaps the decision in Gopal Krishna Saha v. Mati Lal Singh 1927 Cal 196 would have been different if the attention of their Lordships were drawn to the decision of the Judicial Committee of the Privy Council in Abdul Rahman v. Emperor 1927 PC 44. Ultimately the case was decided on the ground that it was a mere irregularity, and not an illegality, which was curable by Sections 535 and 537, Criminal P.C.

The next case is Jagannath Singh v. Emperor 1934 Nag 258. That was a case in which the point raised was that the lower Court did not comply with S.242, Criminal P.C, but the judgment shows that the order sheet in that case ran as follows: "Particulars of the offence explained to the accused. They pleaded not guilty." It is exactly this point that I have been emphasizing in the earlier portion of my judgment that if the Magistrate noted that the particulars of the offence were explained to the accused, then there was nothing to be said and, as I have said, the Magistrate ought to have indicated that both parts of Section 242 were complied with, although a detailed note of the proceedings was not required to be recorded in the order-sheet showing that the first portion of the provisions of Section 242 as well as the second portion of Section 242 were complied with. Therefore this case does not help the prosecution very much.

Now it is curious that the latter case of the same Court did not take its stand on that ground because although they referred to this case they really did go upon this: that Section 242 does not say that the Magistrate shall make a record of what he stated to the accused in explaining the offence. It is sufficient if he has shown that he had orally explained the particulars of the offence to the accused and asked him to show cause. The latter decision, as I have said, of the Nagpur Court did not take its stand upon the view of law taken in the earlier decision in 1932 that the whole thing was curable by Sections 535 and 537, Criminal P.C. The case in Public Prosecutor v. Shankaralinga Moopan 1919 Mad 52 was an appeal against acquittal on behalf of the Crown. The accused was charged with an offence under S.162(c), Madras Local Boards Act (5 of 1884) in that he had erected without permission a masonry pial in the public street in front of his house and that he had failed to remove the same within the time allowed by the notice issued to remove the same by the Union Chairman of the locality. The accused pleaded that the notice issued by the Union Chairman was not a legal one. The Court of first instance found that the Chairman was authorized by the President of the Taluka Board u/s 98(2), Local Boards Act to issue notices to remove encroachment on public roads, that the same was valid and that the accused was therefore guilty. On appeal against the conviction by the accused the Sub-Divisional Magistrate acquitted the accused holding that the delegation of the duty to issue the notice to anyone was not valid. Thereupon on that view of the law the conviction was set aside by the appellate Court. On appeal their Lordships upheld the view taken by the trial Court so far as the authority to delegate the power was concerned. Incidentally I find a paragraph in the judgment which runs as follows:

The case against the accused being a summons case no charge was necessary and as the accused was represented by a vakil, he must have been aware of the charge against him and could not have been prejudiced by the Magistrate''s omission to explain it to him.

How this point arose it is not very clear to me from the report that has been placed before me. So it is not safe to express one''s opinion one way or the other on the strength of that paragraph in the judgment. In the result even if it be held that the Nagpur decision was different from that of the Calcutta view, I would prefer the Calcutta view according to the practice of this Court to the Nagpur view and would set aside the conviction and sentence passed upon the petitioner and remand the case to the trial Court to be disposed of in accordance with law.