Chathukutty vs S.I. of Police

U.L. Bhat, J.—These cases have been referred to Division Bench doubting the correctness of the decision of a learned Single Judge of this Court in Murali v. State of Kerala 1987 (1) KLT 69.

The facts in Crl.M.C. No. 607 of 1986 can be summarised as follows: S.I. of Police, Kuthuparamba filed what is known as ''petty case charge sheet'' before the Judicial Second Class Magistrate, Kuthuparamba on 23rd July 1983 alleging that on the previous night at 8 p.m. Head Constable of Police attached to the police station found the Petitioner on the public road in Kuthuparamba bazar in a State of drunkenness and incapable of taking care of himself, behaving in an indecent and disorderly manner under the influence of alcohol and causing inconvenience to the public and that the Petitioner committed an offence u/s 51(a) of the Kerala Police Act. The Petitioner had been subjected to medical examination and medical certificate showed that he had consumed alcohol and was under the influence of alcohol. When the report was submitted to the learned Magistrate, Petitioner was present. The Magistrate in his order stated that:

The accused entered appearance today itself and he was questioned u/s 251 Code of Criminal Procedure. He pleaded quilty to the offence u/s 51 of the K.P. Act. To ascertain whether the confession was made voluntarily, after understand- ing its full implications, the facts of the case were once again explained to him and his attention was drawn to the penalty that would be awardable. In spite of this he was adamant in confessing his quilt. He was also asked whether he was forced to confess owing to some external pressure. An emphatic ''no'' was the reply. The accused is some what educated. He was very cool when he made the confession. I hold that the confession was made voluntarily.

Learned Magistrate also stated that he gave an opportunity to the Petitioner to state any extenuating circumstances. But the Petitioner said nothing. He is a Peon in a U.P. School. Learned Magistrate convicted and sentenced him to undergo S.I. for one month and to pay a fine of Rs. 200 and in default to undergo S.I. for a further period of one week. The conviction and sentence were confirmed by the Assistant Sessions Judge, Tellicherry who found that the plea of guilty was voluntary. Revision before the Court of Session was also dismissed. He has therefore filed Crl.M.C. No. 607 of 1986 u/s 482 of the Code.

The facts of the case in Crl.R.P. No. 374/87 can be summarised thus: S.I. of Police, Ottappalam on 15th October 1986 laid before the Judicial Magistrate of the First Class, Ottappalam what is known as ''petty case charge sheet'' alleging that on the night of 12th October 1986 at about 12.15, the revision Petitioner was found in the Ottappalam-Shornur public road near Lakshmi theatre in a drunken condition and under the influence of alcohol and behaving in an indecent and disorderly manner, being unable to control himself and creating inconvenience to the public and uttering obscene words and obstructing the traffic. Medical certificate from the Government Doctor showed that the revision Petitioner was under the influence of alcohol. The Head Constable of Police, in whose presence the offence was committed, gave a report before S.I. of Police, who laid ''petty case charge sheet'' before the learned Magistrate. The records also show that on 15th October 1986 S.I. of Police had given notice to the revision Petitioner informing him that he may appear in Court on 15th October 1986 at 11 a.m. Learned Magistrate read out the particulars of the offence to the revision Petitioner, who pleaded guilty. Accepting the plea, learned Magistrate convicted and sentenced him to undergo S.I. for 15 days for offence u/s 51(a) of the Kerala Police Act and to pay a fine of Rs. 50 and in default to undergo S.I. for three more days. The conviction and sentence were confirmed by the appellate Judge, who rejected the contention of the Appellant that conviction and sentence without issue of summons was illegal. Learned appellate Judge, however, indicated that notice given by the S.I. of Police may amount to summons.

Learned Counsel who challenged the conviction and sentence mainly raised the following contentions:

(i) In view of the decision in Murali''s case 1987 (1) KLT 69 since the Court did not issue summons for appearance, the trial and the judgment are illegal and the accused in the two cases have to be acquitted.

(ii) That in any view of the case since the accused were not given notice of the complaint or other material available against them and were not given a reasonable opportunity to decide whether they should defend themselves or plead guilty, the judgments are vitiated.

(iii) That the Police Officers conducted investigation and since the cases are non-cognizable cases, the investigation and subsequent trial are illegal. Even assuming that the petty case charge sheet is a compliant, since learned Magistrate took cognizance on the basis of investigation conducted in non-cognizable cases, the trial and judgment are vitiated.

(iv) That the lower Court did not observe the mandate of Section 251 Code of Criminal Procedure.

(v) That in any view of the case, the sentence imposed is excessive and the accused should have been dealt with under the provisions of Probation of Offenders Act.

The charge in Murali''s case 1987 (1) KLT 69 was u/s 51(A) of the Kerala Police Act. The offence was comitted on the night of 18th March 1983. It appears the accused were produced in Court with the report of the S.I. of Police on 19th March 1983. The Court numbered the case as Summary Trial case and since the accused were present in Court, the Court proceeded to explain the substance of accusation to the accused, recorded and accepted the plea of guilty and convicted and sentenced them. It was argued before the learned Single Judge that the proceeding was illegal inasmuch as the Court did not issue summons for appearance of the accused. Learned Judge referred to Section 204(1) and Section 251 of the Code and observed:

When Section 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 Section 204 of the Code. If 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 a 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. 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.

(emphasis supplied)

The learned Judge also relied on the decisions in Rajkumar Chauhan v. The State AIR 1967 Tri 13 and State v. Raghuram AIR 1964 Cal 64. In Rajkumar Chauhan''s case AIR 1967 Tri 13 issue of summons was ordered, but summons was not issued and the case was taken up a few days earlier than the day fixed for the appearance of the accused. The accused were actually present. The Court indicated that it was necessary to give notice to the accused to enable the accused to come prepared in his mind to plead guilty or defend himself and explaining the accusation as contemplated in Section 251 of the Code is not a complete substitute for issue of summons. In Raghuram''s case AIR 1964 Cal 64 summons was ordered, but not served. The Court proceeded with trial since accused were present. Accused pleaded guilty and that was acted upon. The learned Judge of the Calcutta High Court indicated that even if accused was present, since summons had not been issued so as to give notice to the accused as to what charge he was called upon to answer, Section 242 of the Code (251 of the 1973 Code) cannot be taken to be complied with. It is interesting to notice that learned Counsel for the Petitioner in Crl.M.C. 607/86 and the revision Petitioner in Crl.R.P. No. 374/87 (for the sake of convenience the parties will be referred to as accused in this judgment) while supporting the decision in Murali''s case 1987 (1) KLT 69 to the extent it holds that without ordering issue of summons, Court cannot proceed, contend that the view taken by the learned Single Judge that summons need not actually be served and it would be sufficient if the accused appears after summons was ordered to be issued is not sustainable. Learned Prosecutor would contend that the entire view taken by the learned Single Judge in Murali''s case 1987 (1) KLT 69 requires reconsideration. Learned Prosecutor has referred to the decisions in Emperor v. Mst. Ruri AIR 1919 Lah 389 Gopal Marwari and Others Vs. Emperor, , In Re: Mikkineni Maruthi, and Mahendra Prasad Sharma and Others Vs. The State of Bihar, (Patna High Court).

We will briefly advert to these decisions. The decision in Emperor v. Mst. Ruri AIR 1919 Lah 389 related to a private complaint by a wife against the husband alleging commission of an offence of bigamy. The Court recorded the statement of the complainant and took cognizance of the offence. Accused was already present and therefore summons was not issued. The High Court indicated that it was unnecessary to issue process and the procedure was perfectly regular and even if there was procedural irregularity trial was not vitiated. In Gopal Marwari and Others Vs. Emperor, it was held by a Special Bench of the Patna High Court that in a case where the accused was already in custody a mere order to produce the accused from custody was an order corresponding to the order for issue of process u/s 204 of the Code and marks commencement of the process. The Andhra Pradesh case In Re: Mikkineni Maruthi, dealt with a non-cognizable offence under the provisions of the Motor Vehicles Act. The Court held that in a case where the accused voluntarily appeared on the date when summons could have been ordered without raising any objection or insisting upon the issue of summons, there is no illegality in the procedure adopted. In the later decision of the Patna High Court in Mahendra Prasad Sharma and Others Vs. The State of Bihar, a Division Bench of that Court held that process u/s 204 is issued to compel attendance and if the accused are already in custody or on bail granted by the Court it may not be necessary for the Magistrate to issue process u/s 204 as that would be only an empty formality.

Chapter XVI deals with commencement of proceedings before Magistrate. Section 204 deals with issue of process in summons and warrant cases. If in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, and the case appears to be summons case, he shall issue summons for the attendance of the accused or a warrant case he may issue warrant or if he thinks fit, a summons for causing the accused to be brought or to appear at a certain time before the Magistrate. No summons or warrant shall be issued until a list of prosecution witnesses has been filed. Every summons or warrant issued upon a complaint made in writing shall be accompanied by a copy of the complaint. Section 205 enables the Magistrate to dispense with personal attendance of the accused. u/s 206, if in the opinion of the Magistrate taking cognizance of a petty offence, the case may be summarily disposed of u/s 260, the Magistrate shall except where he is, for reasons to be recorded in writing, of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date by post or messenger the said plea in writing and the amount of fine specified in the summons or if he desires to plead guilty to the charge through such pleader to authorise, in writing, the pleader to plead guilty and to pay fine.

Chapter VI of the Code deals with process to compel appearance by way of summons or warrant of arrest. Summons or warrant shall be issued in the form prescribed. Form No. 1 in second schedule to the Code lays down the form of summons. The summons is to require the accused to appear in person or by pleader as the case may be before the Magistrate on the date mentioned therein to answer to a charge for an offence described in the summons. Form No. 2 deals with form of warrant of arrest. Warrant also must inform the accused that he stands charged with the offence stated therein.

The procedure of trial of summons cases and warrant cases is dealt with in Chapter XX and XIX respectively. Section 251 states that when in any case accused appears or is brought before the Magistrate the particulars of offence of which he is accused shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame charge. Section 252 states that if the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may in his discretion convict him thereon. Section 253, dealing with summons issued u/s 206, enables the accused to plead guilty to the charge without appearing before the Magistrate and transmit plea by post or by messenger along with the amount of fine. Where the accused does not plead guilty or the plea has not been acted upon the procedure to be followed is laid down in the remaining sections of Chapter XX. Similarly Section 238 dealing with warrant cases states that where the accused appears or is brought before the Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207 (supply to accused of copy of the police report and other documents). Section 240 deals with framing of charge, reading over and explaining the charge to the accused and asking whether the accused pleads guilty of the offence charged or claims to be tried. If the accused pleads guilty, Section 241 requires the Magistrate to record the plea and in his discretion to convict him. Where there is no such conviction, procedure to be followed is dealt with in the remaining provisions of the Chapter. The procedure in cases instituted otherwise than on police report is dealt with in Section 246.

We need not in this case consider the procedure relating to cases initiated by the police report, we need consider only cases initiated on complaint by police officer in non-cognizable cases. We have to keep in mind the broad scheme of the provisions in Chapter XIII of the Code. Where an officer in charge of a police station receives information about the commission of a non-cognizable offence, the substance of the information shall be recorded in the prescribed book and the complainant referred to a Magistrate. No police officer shall investigate the case without an order of a Magistrate. The police officer in whose presence a non-cognizable offence is committed or who otherwise becomes aware of it is not precluded from filing a complaint in Court as contemplated in Section 190(1)(a) of the Code. It is open to the Magistrate to take cognizance of the offence complained of in such complaint. Thereupon the Magistrate shall follow the procedure prescribed in Chapter XV. If he is satisfied that there is no sufficient ground for proceeding he can dismiss the complaint. If he is satisfied that there is sufficient ground for proceeding, in a summons case he has to issue summons for the attendance of the accused and in a warrant case he has to issue warrant for causing the accused to be brought or if thinks fit a summons to appear. The purpose of summons or warrant is to ensure attendance of the accused before Court since the trial cannot be conducted in the absence of the accused. The procedure for trial, requires the presence of the accused since his plea has to be recorded. In a cognizable case it is quite possible that the accused is already in police custody and is produced before Court or is in judicial custody or is on bail. In such cases, issue of summons or warrant as contemplated in Section 204 is quiie unnecessary and uncalled for. If he is produced on the particular day from, police custody, he should be either let out on bail or remanded to judicial custody. If he is let out on bail, naturally he will be informed about the date on which trial will be conducted. If he is in judicial custody, warrant for production would suffice. In such cases issue of summons or warrant of arrest as contemplated in Section 204 does not arise. The purpose sought to be served by issue of summons or warrant of arrest u/s 204 is to ensure attendance of the accused to enable the Court to proceed with the trial by following the procedure prescribed in the Code. If he is already present, no furrher step is necessary to secure his presence. Process would be unnecessary when the accused is present in Court to answer the accusation against him or charge against him. In our opinion it is reasonable to read Section 204(1)(a) as stating ''and the case appears to be a summons case, and if the accused is not present, he shall issue summons for the attendance of the accused''. Section 204(1) proceed on the basis that the accused is not present. The provision for issuing summons rests on absence of the accused for, in almost all cases accused is not likely to be present, he cannot even be aware that proceeding has been initiated against him in Court. If however he is present, issue of summons becomes unnecessary. With great respect, we are unable to agree with the interpretation placed upon this provision in the judgment in Murali''s case 1987 (1) KLT 69 or in the judgments referred to in that case. We are inclined to agree with the view taken in the line of contrary decisions referred to earlier. We hold that issue of process or passing an order directing issue of process is unnecessary in cases where accused is in attendance in Court. Failure to pass such an order or failure to issue process in such cases is not an illegality or irregularity.

Nevertheless it is imperative that there must be application of mind to the materials on record before the judicial act of taking cognizance of an offence. Taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as the Magistrate applies his mind to the suspected commission of an offence. If he has not applied his mind, he cannot proceed with the case. His decision to proceed need not be a formal order or in writing. An order directing issue of process will certainly indicate application of mind and decision to proceed. But is the converse true? Will absence of an order directing issue of process indicate non-application of mind and absence of decision to proceed? That seems to be the view taken in Murali''s case 1987 (1) KLT 69. With great respect, we are unable to agree with this view. Section 204 requires that the Magistrate taking cognizance must be satisfied that there is ground for proceeding; such satisfaction must be arrived after applying his mind to the materials on record. The Code does not mandate that the satisfaction must be recorded in writing (though it is desirable to do so) or that reasons therefore must be recorded. It is sufficient if the records or the further steps taken by the Magistrate clearly indicate that he has been satisfied that there is sufficient ground for proceeding. In the generality of cases the fact that the Magistrate ordered issue of process or where the accused is in attendance acted u/s 251 Code of Criminal Procedure could lead the necessary inference that he was satisfied, on due application of mind that there was sufficient ground for proceeding.

Learned Counsel for the accused contended that Section 204(3) requires summons or warrant to be accompanied by a copy of the complaint and if summons or warrant is not issued, the accused may not have the benefit of perusing the complaint. Since the initiation of the case is by the complaint in writing, the accused must be in a position to know the exact averments therein and the identity of the witnessess cited in the complaint. The complaint in such circumstances can be said to take the place of first information statement in a cognizable case. All that Section 204(1) indicates is that when summons or warrant is issued that shall be accompanied by a copy of the complaint. This provision is intended only for the purpose of ensuring that the accused has opportunity to look into the complaint without delay. The Code is a Code of Procedure and like all procedural laws, is designed to further ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice. See Willie (William) Slaney Vs. The State of Madhya Pradesh, . That purpose can very well be served by the accused being given a copy of the complaint when he is already in attendance. The provision in Section 204(3) is directory and not mandatory as indicated in Ram Narain Vs. Bishamber Nath and Another, ,- Prabh Dayal Gobind Ram Vs. R. Mudgil, A.S.M., and Monoranjan Chakraborty v. State AIR 1970 Tri 84 and the failure to comply strictly with the provision will not invalidate the proceeding or trial unless prejudice is made out. See the observation of the Supreme Court in regard to violation of Section 173(4) in Narayan Rao Vs. The State of Andhra Pradesh, .

The next contention is that police officers in these two cases conducted investigation into non-cognizable offences, such investigation is illegal and therefore the subsequent trial also is illegal. There is no doubt that the offence involved is non-cognizable and therefore there cannot be police investigation without the order of a competent Magistrate and no police officer could submit report as contemplated in Section 173 of the Code. Nor could there be any power of arrest without warrant. What exactly is the effect of a report submitted to Court by a police officer in relation to a non-cognizable offence? The complaint as defined in Section 2(d) is any oral or written allegation made to a Magistrate with a view to his taking action under the Code but does not include a police report. The explanation to the definition indicates that report made by a police officer in a case which he discloses after investigation commission of a non-cognizable offence shall be deemed to be a complaint and the police officer shall be deemed to be the complainant. Cognizance can be taken on the basis of a complaint of facts which constitute an offence u/s 190(1)(a) of the Code. Therefore, the report or complaint or ''petty case charge sheet'' submitted by a police officer in such cases cannot be considered as police report u/s 173 of the Code. It can only be treated as complaint. This is the view taken by a Division Bench of the Travancore Cochin High Court in State v. Meera Sahib AIR 1957 T.C. 132 and a Division Bench of this Court in State of Kerala Vs. M.P. Ali Meerankutty, We notice that the same view had been taken by various High Courts. See the decisions of a Full Bench of the Bombay High Court in King Emperor v. Sada ILR 1926 Bomb. 150 and a Full Bench of the Madras High Court in The Public Prosecutor Vs. Ratnavelu Chetty,

The question next arising for consideration is whether any police officer in these cases conducted investigation? In both these cases offence was committed in the presence of respective Head Constables of Police, who submitted reports to the Station House Officers, viz., Sub Inspectors of Police. The Sub Inspectors of Police filed petty case charge sheets (that is generally the name given by police officers to complaints filed by them in non- cognizable cases). Investigation is defined in Section 2(h) as including all the proceedings under the Code for the collection of evidence conducted by a police officer or by any authorised person. A clue to the meaning and amplitude of the expression ''investigation'' is found in Section 157. This has been explained by the Supreme Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, and The State of Madhya Pradesh Vs. Mubarak Ali, Investigation starts when police officer receives information regarding offence. He proceeds to the spot to ascertain the facts and circumstances of the case and discover and arrest the suspectable offender. He collects evidence relating to the commission of the offence by examining persons and writing down their statements, search of places effecting seizures and ultimately by formation of opinion in regard to the commission of offence by this suspected person. We do not think in these cases there was any investigation as contemplated by the Code. Offences were committed in the immediate presence of Head Constables of Police. The accused persons were examined by Medical Officers attached to Government Hospitals, who also issued Medical Certificates. It is quite possible that the accused persons were taken to the respective Police Stations when the Head Constables of Police submitted reports to the Station House Officers. There is no case for anyone that any Station House Officer conducted any investigation in this case. It is argued that the Head Constables of Police took the accused persons to the Medical Officers and caused them to be subjected to medical examination and thereafter took them to the Police Stations and they were detained during the night. In one case we find that the complaint was filed very next day while in the other case complaint was filed on the third day. Notice from the Sub Inspector of Police indicated that the accused could attend Court on the date indicated therein. There is nothing on record to show that the Head Constables of Police arrested the accused persons or took them forcibly to the Medical Officers or took them in custody to the Police Stations or detained them in the Police Stations. We have to appreciate the circumstances in the light of the fact that according to the prosecution accused persons were under the influence of liquor. We are not satisfied that any investigation had been conducted by any police officer in these cases.

Assuming that aforesaid acts amount to investigation conducted by the Head Constables of Police, what is the consequence? If the irregularity is noticed in the beginning the Magistrate can take appropriate remedial action as laid down in Kunhumohammed v. State of Kerala 1981 KLT 50. What is the position if the irregularity is not noticed till the termination of the case? A Division Bench of this Court in State of Kerala Vs. Devassy, has taken the view that investigation in regard to non-cognizable offence without the order of a Magistrate, though violative of Section 155(2) of the Code, does not vitiate the trial unless there has been miscarriage of justice. The Supreme Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, relying on two Privy Council decisions, AIR 1944 73 (Privy Council) and Lumbhardar Zutshi v. The King AIR 1950 P.C. 26, held that a defect or illegality in investigation has no direct bearing on the competence or the procedure relating to cognizance or trial, that congnizance is not a nullity and he defect can be cured u/s 537 of the Code of 1908. The result of the trial cannot be set aside unless the illegality in investigation has led to miscarriage of justice. Similar view was taken by the Supreme Court in The State of Uttar Pradesh Vs. Bhagwant Kishore Joshi,

The question therefore is whether there has been prejudice caused to the accused leading to miscarriage of justice. The records show that accusations were read out and explained to the accused persons. In one case the learned Magistrate repeatedly cautioned the accused. Petty case charge sheets filed in such cases are not elaborate complaints. They contain only the accusations and nothing more. The accusation in each of the case mentions only the manner in which the accused was found behaving in a public place on the date and time mentioned. Going by the records, such accusation was read out and explained to the accused. There is nothing to indicate that copy of the petty case charge sheet or complaint was not made available to the accused in either of these cases. The copy contains list of witnessess. Medical certificate is appended to the petty case charge sheet. Accused were specifically asked about the accusation and they pleaded quilty. In these circumstances we are unable to find that any prejudice has been caused to the accused or that there has been any miscarriage of justice.

We have already indicated that the purpose of serving a copy of the complaint along with the summons is to give notice to the accused of the complaint and other materials available. It gives the accused a reasonable opportunity to decide whether he should defend himself or plead guilty. These are cases of complaints styled as petty case charge sheets. The complaints are brief ones explaining the manner in which the accused conducted themselves in public place on the date and time mentioned therein. These are not cases of complaints containing long and elaborate or complicated averments or allegations. Accusation itself is a short and brief one and that is all what is contained in the complaint. We have indicated that we have no ground to hold that a copy of the complaint was not given to the accused. The accusation was read out and explained. In the circumstances of the case we do not find any ground to hold that accused had no reasonable opportunity to decide whether they should defend themselves or plead guilty.

The next argument is that the mandate of Section 251 of the Code has not been followed in these cases. Section 251 requires that the particulars of offence of which he is accused shall be stated to him and he shall be asked whether he pleads guilty or has any df fence to make, but it is not necessary to frame a formal charge. The entire accusation is contained in the complaint. The records show that the accusation had been read and explained and the Magistrate was satisfied that the accused persons understood the accusation as also the ingredients of the offence since the particulars of the accusation include the ingredients of the offence. A Division Bench of this Court in Provident Fund Inspector v. Mohammed 1980 KLT 698 laid down as follows;

Under Section 251 Code of Criminal Procedure the particulars of the offence must be stated to the accused. A mere reading of the charge or the complaint as such will not be sufficient compliance of the section. The ingredients of the offences stated in the charge or the complaint as the case may be, must be read out and explained to the accused person.

We have no reason to hold that this procedure has not been followed in the instant case.

To obviate the challenges such as those levelled in this case Magistrates would do well to meticulously follow all the procedural requirements which after all are intended only to ensure fair trial. In summons cases formal charge is unnecessary. However it is desirable to indicate in the order sheet or judgment the exact accusation and particulars read out to the accused. This, of course, is not a legal requirement. Section 251 requires that the accused shall be asked whether he should plead guilty or has any defence to make. Of course if the Magistrate asks the accused whether he pleads guilty or pleads not guilty, that is sufficient compliance with the requirement of the section. But it is desirable to follow the form indicated in Section 251.

A Police Officer, even though he cannot arrest the accused, may very well tell him that the complaint or the petty case charge sheet is being or has been produced before Court. The accused may be advised by the Police Officer to be present in Court. The Police Officer may even help the accused to reach the Court. The accused in several cases may also be anxious to plead guilty and have the case done with; it may also be that an accused person plead guilty under mistaken impression that if he does so he may be dealt with leniently or dealt with under the Probation of Offenders Act. It is therefore advisable that the Magistrates, after satisfying all the procedural requirements, record the various steps taken, including service of copy of the complaint or petty case charge sheet. If no lawyer is present, accused may be advised of his legal right in that behalf, if the accused so desires, he may be granted a short adjournment to have a lawyer appear for him. Even in petty cases it is desirable and necessary to maintain an order sheet with full and correct entries and also to prepare a brief judgment referring to the observance of procedural requirements. We have no doubt that in a large number of cases, particularly offences punishable only with fine as in the case of many of the offences under the Motor Vehicles Act, accused persons are only anxious to have their dealing with the Court put an end as expeditiously as possible as that may save considerable amount of time, energy and money. Even then Magistrates have to satisfy themselves at the outset that the procedural requirements are followed and the accused understands the accusation against him and the consequence of his pleading guilty and his right to plead not guilty and to have legal assistance and to defend himself. It is necessary that the criminal justice system should create and maintain confidence among the public. That can be only when justice, besides being done is also seen to be done.

Learned Counsel for the accused finally contended that the accused may be dealt with under Sections 3 or 4 of the Probation of Offenders Act. It is said that the accused in one of the cases is a Peon in a school. If that be so, in our opinion, the gravity of his offence is of a higher degree than of the accused in the other case, who is only a labourer. Considering the nature of the evidence and circumstances of the case, we do not think that they should be dealt with under the provisions of the Probation of Offenders Act. The Crl.M.C. and the Crl.R.P. are therefore dismissed.