Kesho Sao vs State of Bihar

K.K. Dutta, J.—This petition in revision arises out of a summary trial, as a result of which the petitioner has been convicted u/s 7 of the Essential Commodities Act for violation of the provisions of Rule 3 of the Imported Foodgrains (Prohibition of Unauthorised Sale) Order, 1958, and has been sentenced to pay a fine of Rs. 500/- and, in default, to undergo rigorous imprisonment for two, months. It has also been directed that the seized foodgrains shall be forfeited to the Government.

According to the prosecution case, on a petition filed by the members of the public before the Subdivisional Officer, Nawada, on 13-6-1967, the Subdivisional Officer ordered for an immediate search of the business premises occupied by the present petitioner at Par Nawada, in the town of Nawada, by two Magistrates Sri NC. Das and Sri S. Prasadi. These two Magistrates, thereupon, proceeded td the house of the petitioner, in a portion of which he had a grocery shop, and as a result of the search, there was recovery of five bags of imported wheat comprising 3 quintals and 13 kilograms and two bags of flour made from imported wheat comprising 63 kilograms, that is, in all 3 quintals 76 kilograms. Two of the bags were alleged to have been found in a room in the residential portion of the house covered by some bags of Bhussa, while the remaining bags were found in a room attached to the shop-room of the petitioner. The Magistrates, thereafter, submitted a joint report, to the Subdivisional Magistrate regarding the seizure of the aforesaid flour and wheat and for prosecution of the petitioner for violation of the Provisions of the Imported Food-grains (Prohibition of Unauthorised Sale) Order, 1958, and cognizance of the case was taken by the Subdivisional Magistrate on the basis of this report.

The defence of the petitioner in the Court below was that the bags of the foodgrains in question did not belong to him, but belonged to two other persons, namely, Paul Das and Ramand Rambrichh (D. Ws. 2 and 3). The defence case was that these two persons had received certain quantities of imported wheat from the Catholic Mission, Nawada, by way of famine relief and after getting a part of the wheat crushed into flour, they had taken with them a portion of the wheat and flour to their own residence and had left the remaining quantity of wheat and flour with the petitioner for safe custody with a view to remove the same on a later date.

The learned Magistrate accepted the prosecution case as correct and rejected the defence version, with the result that he convicted and sentenced the petitioner u/s 7 of the Essential Commodities Act, as stated above.

Various points were raised on behalf of the petitioner before me by Mr. Jyoti Narain, but it is unnecessary to enter into all those, points as I find that the order as passed by the learned Magistrate in the present case has got to be set aside and the case has to be remanded back for fresh trial in view of the fact that the trial is vitiated on account of non-compliance of the prescribed provisions of law.

As already stated, the procedure for summary trial was adopted in this case and this was due in accordance with the provisions of Section 12A of the Essential Commodities Act, 1955. Sub-section (1) of this Section provides that in case of summary trial of any offences as mentioned in this Sub-section, the provisions of Chapter XXII of the Code of Criminal Procedure shall, as far as may be, apply to such trial. On a reference to Chapter XXII of the Code of Criminal Procedure, it appears that Sub-section (1) of Section 262 of this Chapter provides that in cases of summary trials, the procedure prescribed for summons-cases should be followed in summons-cases, and the procedure prescribed for warrant-cases shall be followed in warrant-cases, except as mentioned in subsequent Section s of this Chapter. Now, an offence u/s 7 of the Essential Commodities Act is punishable with imprisonment for a term up to three years in case of violation of any order made with reference to clauses other than Clauses (h) and (i) of Sub-section (2) of Section 3. Hence the case relating to the offence in question, which is punishable for a term upto three years, comes within the definition of "warrant-case" as embodied in Clause (w) of Sub-section (1) of Section 4 of the Code of Criminal Procedure. It follows, therefore, that the procedure laid down in the Code of Criminal Procedure for trial of warrant-cases had to be followed in. connection with the summary trial of the offence in question in view of the provision of Sub-section (1) of Section 262 of the Code subject, of course, to the other provisions as embodied in Chapter XXII.

In the present case, the cognizance of the case was taken by the Subdivisional Magistrate not on the basis of a police report after investigation of the case, but on the basis of the report of the two Magistrate who had been deputed by him to search the promises of the petitioner. Hence the procedure laid down in Section 252 onwards of Chapter XXII of the Code of Criminal Procedure (which relates to trial of warrant cases) had to be followed in the case. The main features of such a trial are that after examination of the prosecution witnesses the charge has to be framed in accordance with Section 255, and thereafter the accused has to be asked whether he is guilty or has any de-fence to make. If the accused refuses to plead, or does not plead, or claimed to be tried, he is required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any of the witnesses, and the witnesses have to be recalled for such cross-examination, as provided by Sub-section (1) of Section 256. After this, the remaining witnesses of the prosecution, if any, may be examined, and then the accused has to be called upon to enter upon his defence and to produce his evidence. In the present case, however, instead of following these provisions, the learned Magistrate called upon the accused to bring his witnesses on the very date fixed for examination of the prosecution witnesses, and on chat date all the prosecution witnesses were examined and crosse-xamined and the defence witnesses were also examined and cross-examined. The procedure thus followed was that provided for trial of summons-cases, and not the procedure laid down for trial of warrant-cases. It has been held in several decisions of various High Courts that if the procedure for trial of summons-cases is followed for the trial of a case which has to be tried in accordance with the procedure for warrant-cases, such trial is altogether illegal and the irregularity is not curable u/s 537 of the Code of Criminal Procedure. As observed by the Privy Council in the case of Pulkuri Kotayya v. Emperor AIR 1947 P.C. 67, "when a trial is conducted in a manner different from that prescribed by the Code ...the trial is bad and no question of curing an irregularity arises, but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured u/s 537". It follows, therefore, that had the procedure for trial of warrant-cases been followed in this particular case and had there been some irregularity or omission in that connection, that irregularity could have been cured in view of the Provision of Section 537, Code of Criminal Procedure.

in the present case, the trial has been conducted by following the procedure laid down for summons-cases, and as such there cannot be any question of the irregularity being cured tinder Section 537 of the Code of Criminal Procedure I may add that in such a case prejudice of the accused is writ large as he had to cross-examine the prosecution witnesses immediately after their examination-in-chief, and he was thereby deprived of the opportunity of cross-examining them at a later date after deliberation as to the lines on which he will take up his defence. In the circumstances, as the present trial is vitiated by the above defect, the order as passed by the learned Magistrate cannot be sustained.

In the result, this application is allowed and the order as passed by the trial Court convicting and sentencing the petitioner u/s 7 of the Essential Commodities Act and forfeiting the seized food-grains is hereby set aside and it is directed that a fresh trial shall be conducted in accordance with the provisions of law.