Mathai vs State of Kerala

Govinda Menon, J.—This is an application in revision filed by the accused who has been convicted by the Munsiff-Magistrate of Perambra for an offence u/s 27 of the Kerala Forest Act. The accused was charge sheeted for an offence u/s 26 of the Madras Forest Act. The offence is alleged to have been committed on 30-3-1962 and the Act in force at that time is the Kerala Forest Act which came into force on 18-1-1962. So the prosecution ought to be only under the Kerala Forest Act. An offence u/s 27 is punishable with imprisonment which may extend to three years and so it is a warrant case and not a summons case. The learned Magistrate, however, followed the summons case procedure and the accused was asked to show cause why he should not be convicted. The accused pleaded not guilty. Three witnesses were examined for the prosecution and one witness was examined for the defence. On the evidence the learned Magistrate found the accused guilty and convicted the accused u/s 27 of the Kerala Forest Act. It is contended by the learned counsel for the petitioner that the trial is vitiated, by the Magistrate following a wrong procedure and that consequently the conviction is illegal. On the other hand the State Prosecutor would contend that it is only an irregularity which could be cured u/s 537, Cr. P.C., unless it appears that prejudice has been caused to the accused. It is not necessary to refer to all the decisions bearing on this matter. The law on the subject has been summed up by the Privy Council in Pulukuri Kottayya v Emperor (AIR 1947 PC 67 at p. 69) in these words:

When a trial is conducted in a manner different from that prescribed by the code as-in Subramania Iyer v King Emperor (28 Ind. App. 257) 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 and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the code.

These observations have been quoted with approval by the Supreme Court in Narayan Rao Vs. The State of Andhra Pradesh, ; Chhadami Lal Jain and Others Vs. The State of Uttar Pradesh and Another, and Payare Lal Vs. State of Punjab, .

It will be seen from the provisions in the Criminal Procedure Code that Offences triable by a Magistrate are classified into two broad categories, summons cases and warrant cases. Chapter XX deals with the procedure for summons cases and Chapter XXI lays down the procedure for the trial of warrant cases. Though the difference between the two procedures have been considerably reduced after the Criminal Procedure (Amendment) Act, 26 of 1955, there are still substantial differences between the two procedures and the accused is in an advantageous position when the warrant case procedure is followed. Therefore, when a warrant case is tried according to the procedure laid down for summons cases it will be difficult to hold that the trial is conducted in the manner prescribed by the Code. As stated by the Privy Council, when a trial is conducted in a manner different from that prescribed by the Code, the trial would be bad and no question of curing by the irregularity would arise. The failure of the trial Magistrate in this case to follow the procedure prescribed for warrant cases, therefore vitiates the entire trial--Vide State of Kerala v Mary (1960 K.L.J. 375).

The Bombay High Court in Bandulal Balaprasad Vs. The State, has taken the same view.

If the Magistrate begins the trial as a summons case as in this case and later finds that the offence disclosed is triable only under the warrant case procedure, he is bound to follow the warrant case procedure from that stage. If authority for this position is necessary, reference may be made to the decisions in Venkataramier v Varadarajulu Chetti (A.I.R. 1938 Mad 815) and Latchanna v Kannayamma (48 Cr.L.J. 726).

Again, in this case the learned Magistrate has tried the case summarily. Section 260 Cr. P.C. authorises a Magistrate of the First Class to try in a summary way offences not punishable with death, imprisonment for life, imprisonment for a term exceeding six months and certain other offences mentioned in the section. Offence u/s 27 is punishable with imprisonment for a term exceeding six months and so the Magistrate cannot try the case summarily. If the Magistrate tries a case summarily which he cannot do u/s 260, he acts without jurisdiction and the illegality of such a nature going to the very root of the trial clearly cannot be cured by Section 537, Cr. P.C. Section 537 Cr. P.C. says:

If any Magistrate, not being empowered by law in this behalf does any of the following things, namely:

XX XX XX XX

(q) tries an offender summarily; his proceedings shall be void.

So there can be no doubt that the entire trial is vitiated and the conviction has to be set aside. Normally, in such cases retrial has to be ordered. The question is whether on the facts of this case a retrial is necessary in the interests of justice. An offence u/s 27 is knowingly receiving or having in possession any forest produce other than a major forest produce illicitly removed from a forest.

Forest produce is defined in Section 2(f). It says:

Forest produce includes the following when found in or brought from a forest that is to say:

(i) trees and leaves, flowers and fruits and all other parts or produce of trees and charcoal.

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So trees must be retained in possession with the knowledge that it is a forest produce. I have been taken through the evidence and I am not satisfied that there is enough evidence to bring home the guilt to the accused. It is, therefore, unnecessary to order a retrial, particularly when the offence alleged had taken place two years ago. It is unfortunate that care was not taken at the commencement of the proceedings to find out what really is the offence, that is committed and what the correct procedure is, that has to be followed.

The revision petition is allowed. The conviction and sentence passed on the petitioner is set aside and he is ordered to be acquitted. Fine, if paid, would be refunded.