Jagdish Prasad vs State of M.P. and Others

U.L. Bhat, C.J.

These revision petitions have been referred to a Division Bench by I. P. Rao, J. doubting the correctness of the view taken by M. P. Singh, J. in Cr. Rev. No. 146 of 1990. We have heard the learned counsel for the revision petitioners and the learned Government Advocate representing the State.

These revision petitions arise out of separate prosecutions under the provisions of the Prevention of Food Adulteration Act, 1954 (for short "the Act'') in Sagar and Jabalpur districts respectively. The trial Courts in the two cases convicted and sentenced the accused and the convictions sand sentences were upheld by the appellate Court. The accused thereupon filed the revision petitions.

Section 16-A incorporated in the Act by Amendment Act No. 34 of 1976 with effect from 1st April 1976 requires that all offences u/s 16(1) shall be tried in a summary way by a Judicial Magistrate of the first Class specially empowered in this behalf by the State Government or by a metropolitan Magistrate and the provisions of Section 262 to 265 of the Code of Criminal Procedure, shall, as far as may be, apply to such trial. In Cr. Rev. No. 236 of 1094. the trial was held by Judicial Magistrate First Class, Deoria Tahsil

Head quarters, In Cr. Rev. No. 629 of 1994, the trial was held by one of the Judicial Magistrates of the First Class at Jabalpur, a district headquarters. By notification No. 3369 dated 11.10.1977, the State Government under S. 16-A of the Act empowered Chief Judicial Magistrates and Additional Chief Judicial Magistrates of all Revenue districts and senior most presiding officers of Courts of Judisical Magistrates of First Class at Tahsil Headquarters, hot being also headquarters of revenue districts, to try all offences u/s 16 (1) of the Act in summary way. Deori in Sagar district is a tahsil headquarter. It is not known if the Magistrate who tried the case was the senior most judicial Magistrate of the First Class. The Magistrate who tired the Jabalpur case, not being a Chief Judicial Magistrate of Additional Chief Judicial Magistrate and Jabalpur being a district headquarter, was not empowered under the notification to try cases u/s 16 (1) in a summary way. In these two cases, the respective Magistrates did not try the case summarily but tired the cases as warrant cases. In a similar case in Criminal Revision No. 146 of 1990, it was held that trying the case adopting warrant procedure constituted violation of section 16-A of the Act and on account of the irregularity, the conviction and sentences were held to be vitiated Rao, J. in the reference order has taken the view that trial cannot be regarded as vitiated as long as there has been no failure of justice. It is this difference of opinion which has led to the references,

Our attention has been drawn to decisions of other High Courts under the provisions of the Act. In Budhram vs. State of Haryana 1984 F A.J. 389 a Full Bench of the Punjab and Haryana High Court held that if a Magistrate is duly empowered the case must in the first instance be tried mandatory in a summary way unless the Magistrate has passed on order as contemplated in the Second Proviso to Section 16-A after hearing the parties. On this basis, the acquittal was sustained. This decision has been followed in several other decisions of the same Court. However, in Subhash Chand Vs. State of Haryana, Grewal J. of the same Court did not follow the decision of Full Bench of that Court relying on the decision of the Supreme Court in Gopal Dass vs. State A I R 1961 S.C. 986 where it was observed that the irregularity of a case triable as a summons case being tried a warrant case does not vitiate the proceedings and is curable u/s 537 of the 1898 Code (Sec. 465 of the 1973 Code) as no prejudice''s to the accused has been established. The learned Judge also noticed that the decision in Gopal Dass case was not brought to the notice of the Full Bench. The learned Judge further observed.

It is difficult to comprehend that in case detailed procedure meant for trial of a warrant case followed by the trial Court, instead of summary procedure which is comparatively much shorter and does not give that much scope or opportunity to the accused either to cross-examine the prosecution witnesses, or, to lead his defence, such an accused can make genuine grievance that such procedure has caused material prejudice to him.

The omission to follow summary procedure in the instant case instead of following procedure meant for warrant case would amount to a mere irregularity and cannot be deemed to be an illegality as contended by the counsel for the petitioner. Thus, the irregularity in following the proper procedure in the present case, referred to above is curable under Sec. 465 of the Code and the orders of conviction and sentence passed by the Courts below cannot be set aside on this score."

In State of U. P. vs. Shiv Dass 1992 F. A. J. 163, a learned single Judge of the Allahabad High Court sustained the acquittal of the accused by the appellate Court on the ground that the accused has vested interest in the procedure prescribed by the statute. Similar view was taken in State of U. P. vs. Shiv Das 1991 F. A. J. 360 by the same Court.

In Durga Prasad vs. State of Bihar 1991 F.A.J. 422 Chief Judicial Magistrate took cognizance of an offence punishable under Sec. 16 (1) of the Act. It was found that the High Court Had empowered the Sub-Divisional Judicial Magistrate u/s 16-A and the State Government had not issued any notification at the relevant time though much later all Judicial Magistrates were so empowered by the State Accordingly, the order taking cognizance was quashed by the Patna High Court. Jagat Narayan Sah and Another Vs. The State of Bihar, is another similar decision of the same High Court.

The Orissa Court in Razak Rice and Oil Mills Vs. Bharat Narayan Patnaik, Food Inspector, Berhampur Municipality and Another, has taken the view that trial is not vitiated as no prejudice was caused to the accused in the conduct of the trial by adopting the warrant procedure. The Court relied on the decision of Gopal Dass''s case. The Rajasthan High Court in Rajendra alias; Rajjan vs. State of Rajasthan 1988 (II) F. A. C. 249 also took a similar view.-

We may also in this connection refer to the decision in Gurmukh Singh and Others Vs. The State of Punjab, . In a prosecution before the incorporation of Sec. 16-A of the Act, the Magistrate failed to adopt the procedure prescribed for warrant case by not examining prosecution witnesses before framing charge. The Supreme Court held that conviction cannot be interfered with as no prejudice was caused.

Our attention is also invited to a few decisions arising on prosecution under the Essential Commodities Act, 1955. Section 12-A was incorporated by Act No. 17 of 1967. By Act No. 18 of 1981, Section 12-A was substituted and Sec. (sic) under Sec. 12-A, Special Courts are required to be constituted for trial of cases under the Act. By Sec. 12-A (1) all offences under the Act are required to be tried in a summary way and provisions of Ses. 262 to 265 Cr. P. C. shall, as far as may be, were made applicable. In Jnan Prakash Agarwala vs. State of West Bengal 1992 (2) E.F. R. 528, a Division Bench of the Calcutta High Court observed that the Special Court has to follow the procedure applicable to summons case though the case itself arose by way of a writ petition challenging the search, and the question required to be considered was whether cognizance can be taken on a charge-sheet filed beyond the prescribed period. In Sonelal Vs. State 1972 M.P.L.J. 763 the Magistrate who convicted the accused under Sec. 7 of the E. C. Act, 1955 had not been empowered under Sec. 12-A of the Act. It was held that trial by any Court other than the Special Court is void. It was observed by a learned Single Judge that the requirement of Sec. 12-A (2), namely that case shall be tried in a summary way by the Magistrate specially compowered in this behalf is mandatory and not directory. Thus, the conviction was set aside. In Prem Sahu vs. State of M. P. 1977 M. P. L. J. 156, these observations were held to be obiter by a learned single Judge who observed that Section 12-A was incorporated with a view to speedy disposal of cases and therefore these offences were directed to be tried summarily, the procedure of summary trial is more disadvantageous to an offender than the procedure of regular trial, and the defect can be cured under Sec. 537 of the 1898 Code (465 of 1973 Code). The learned Single Judge relied on the decision of the Supreme Court in Gopal Dass''s case A. I. R. 1961 S. C. 968 Learned Judge also pointed out that it has not been shown as to what prejudice has been caused to the accused when, in fact, he got the full opportunity to defend himself. High Court of Karnataka has taken a similar view in Gurappa Hanmanthappa Bijapur and another vs. The State 1992 Cri. L.J. 1953

Of the various kinds of procedures required by the Court to be adopted by Magistrates trying criminal cases, the most elaborate is one in Chapter XIX of the Code. It deals with trials in warrant cases by Magistrates. Charge has to be framed, plea of the accused has to be recorded, evidence for prosecution taken, the accused questioned and the defence evidence taken. Evidence of the prosecution and the defence has to be recorded in terms of sections 275, 278 and 279 of the Code. Trial of cases by summons procedure is provided in Chapter XX of the Code. Instead of Charge being framed, substance of accusation is to be read over to the accused and his plea recorded. Prosecution evidence and the defence evidence is required to be taken but evidence is not to be recorded or dealt within the manner provided under Sections 275, 278 and 279 of the Code, memorandum of substance of the evidence is prepared and that is not required to be read over to the witness nor his signature is required to be taken. Procedure for summary trial is prescribed in Chapter XXI of the code. The procedure for summary trials is exactly the same as the procedure for trial of summons cases. Warrant case procedure being more elaborate provides better opportunity 10 the accused to defend himself. The summons or summary procedure is prescribed only for trial of comparatively minor offences involving comparatively lesser sentences. In serious cases, it is open to the Magistrate to convert summons case into a warrant case, as seen in Section 259 of the Code. The purpose of providing summons of summary procedure is to shorten the record and the work of the Magistrate and save his time. The power of the Magistrate to try cases summarily u/s 209 is discretionary. The offences under the Act being offences against the health and well being of people, it is fell necessary that these cases should be dealt with expeditiously. It is to secure expedition in trial of these cases that Section 16-A was incorporated. At the same time, the Legislature took care to ensure that summary power is exercised only by empowered Magistrates and not by all Magistrates. Undoubtedly when the legislature directed that these cases ''shall be tried in a summary way'' by empowered Magistrate the direction is meant to be followed in latter and spirit by the Magistracy. Summary procedure did not give better protection to the accused, it is warrant procedure which ensures more elaborate trial. Hence, the provision cannot be regarded as mandatory in the sense (hat any departure from the mandate shall vitiate the trial. Considering the Legislative purpose underlying the provision, it is not possible to held that where the empowered Magistrate tries a case u/s 16-A of the Act not in summary way but adopting the procedure in a warrant case, the trial is vitiated and the conviction has to be reversed without anything more. If as a matter of fact, in any given case, violation of Section 16-A of the Act has caused prejudice to the accused resulting in failure of Justice, then undoubtedly the superior court can step in and quash the conviction and either acquit the accused of in appropriate cases, direct re-trial.

In Gopal Dass''s case A.I.R.1961 S.C. 986 an offence u/s 448 of the I. P. C. which was triable as summons case was tried adopting the procedure prescribe for a case triable as a warrant case. The Supreme Court held that this irregularity does not vitiate the proceedings and is curable u/s 537 of the Code, 1898 (which is the same as section 465 of the Code of 1973), as no Prejudice to the accused has been established in the case. The Supreme Court observed in Chittaranjan Das Vs. State of West Bengal, .

".........Requirements of procedure are generally intended to sub-serve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice.

In Gurmukh Singh and Others Vs. The State of Punjab, an offence u/s 16 (1) of the P. F. A. Act before introduction of Section 16 was tried without following the procedure for warrant ease. The witnesses for the prosecution were not examined before framing the charge. The accused pleaded guilty and were convicted. The Supreme Court rejected the challenge against the legality of the trial on the ground there was only a curable irregularity and no prejudice has been caused to the accused.

The aspects as referred to by us in the preceding paragraphs and the observations of the Supreme Court were not brought to the notice of the learned Judge who decided the Criminal Revision No. 146 of 1990 holding that the trial was vitiated. The view taken is, with great respect, not correct.

We hold that me trial of an offence under the Prevention of Food Adulteration Act 1954 nut in a summary, way but following the procedure prescribed for trial of a warrant case and without passing an order as contemplated in the proviso to section 16-A of the Act is a curable irregularity and the trial is not vitiated, if the accused does not satisfy the Court that there has been failure of justice or prejudice caused to him. The references are accordingly answered. The criminal revision petitions will go back to the appropriate Bench for disposal.