Mehboob Khan and Another vs State of M.P.

N.K. Mody, J.—Being aggrieved by the judgment dated 14-10-09 passed by I ASJ, Shajapur in Cr.A. No. 184/08 whereby the judgment dated 11-8-08 passed by JMFC, Shajapur, in Criminal Case No. 1293/06 whereby the Petitioners were convicted for the offence punishable u/s 3/7, Essential Commodities Act by sentencing them to undergo one year RI and fine of Rs. 500/- each was confirmed, present revision petition has been filed.

Case of the prosecution was that Assistant Food Officer, Shajapur made a written complaint to the effect that on 19-1-06 Maruti Van bearing Registration No. MP/07-N/1570 was inspected at about 3.30 p.m. in presence of witnesses. It was alleged that during inspection, it was found that it was being plied by using domestic gas cylinder. It was alleged that the offending vehicle was being driven by Farid Khan (Respondent No. 2) and in the cylinder 7 kg. of gas was found. It was alleged that the driver was not possessing any license to use the domestic gas. Further case of prosecution was that Farid Khan informed that Mehboob Khan who is Petitioner No. 1 is the owner of the vehicle. Upon which case was registered against the Petitioner. After framing of charges and also after recording of evidence the offence was found proved and Petitioners were convicted as stated hereinabove. An appeal was preferred against the order which was dismissed, hence this revision petition.

Learned Counsel for the Petitioners argued at length and submits that Petitioners have convicted illegally while Petitioners have not committed any offence. Learned Counsel further submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this revision. It is submitted that the learned Courts below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. Learned Counsel further submits that since the offence committed by the Petitioners was summarily triable, therefore, the learned Trial Court committed error in convicting the Petitioners. It is submitted that in a case in which the offence is summarily triable, it is the Judge who tries the case must pronounce the judgment. For this contention learned Counsel placed reliance on a decision of Calcutta High Court in the matter of Kanailal Das Vs. State of W.B., wherein in a case of Essential Commodities Act, Calcutta High Court held that Special Judge who tries case must pronounce judgment. It was further held that evidence partly recorded by one Judge and partly recorded by another Judge who delivered judgment, vitiates entire trial. Further reliance is placed on a decision of Rajasthan High Court in the matter of State of Rajasthan Vs. Rajesh Agrawal and Others etc., wherein Rajasthan High Court has observed that in case of transfer of case, succeeding Judge has to order for de novo trial. It was also observed that the provisions of speedy trial u/s 326, Code of Criminal Procedure are not applicable in case of summary trial.

On the strength of aforesaid position of law, learned Counsel submits that the petition filed by the Petitioners be allowed and the impugned judgment passed by the learned Courts below be set aside.

In alternative learned Counsel submits that the Petitioners were in jail w.e.f. 14-10-09 and the jail sentence was suspended by this Court vide order dated 4-11-09. It is submitted that looking to the nature of offence and the fact that Petitioners have already served substantive part of jail sentence, the same may be reduced to the period already undergone and the amount of fine may reasonably be enhanced.

Learned Counsel for the State submits that after due appreciation of evidence both the Courts below have found the Petitioners guilty for the aforesaid offence. It is submitted that revisional jurisdiction of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below.

From perusal of the record, it is evident that after framing of charges the prosecution has examined Manohar Sharma and Hemsingh Tomar as P.W. 1 and P.W. 2 on 14-8-07, Ashok Kumar Tank and Sunil as P.W. 3 and P.W. 4 on 15-7-08, while Suresh Chandra Nagra was examined as P.W. 5 on 30-7-08.

Section 326 of Code of Criminal Procedure deals with conviction or commitment on evidence partly recorded by one Magistrate or Judge and partly by another. As per Sub-section (1) of Section 326 of Code of Criminal Procedure whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and it succeeded by another Judge or Magistrate who has and who exercises such jurisdiction the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself. Sub-section (3) of Section 326 of Code of Criminal Procedure lays down that this section shall not applies to summary trials or to cases in which proceedings have been stayed u/s 322 or in which proceedings have been submitted to Superior Magistrate u/s 325. The word summons cases has been defined under Sub-section (w) of Section 2 of Code of Criminal Procedure accordingly to which summons cases means a case relating to an offence and not being a warrant case. Warrant case has been defined in Sub-section (x) of Section 2 of Code of Criminal Procedure accordingly to which warrant case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. The cases under the provisions of Essential Commodities Act are the cases of warrant cases. Summary trials are being tried as per Chapter 21 of Code of Criminal Procedure. As per Section 260 of Code of Criminal Procedure. JMFC may if he thinks fit, try in a summary way all or any of the offence mentioned under that sub-section, the offence punishable under the provisions of Essential Commodities Act are not mentioned in Sub-section (1) of Section 260 of Code of Criminal Procedure. Procedure of summary trial is mentioned u/s 262 of Code of Criminal Procedure. In a summary trial when the accused does not plead guilty, the Court has to record the substance of the evidence and the judgment containing the brief statements of these facts. The general rule of trial is that the person who hears the entire case must give judgment but a departure has been made by Section 326 of Code of Criminal Procedure, this provisions has been made in order to expedite the trial but this section has not been made applicable in the cases is scanty. The succeeding Judge, therefore, cannot act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself and he has to hold a de novo trial.

From perusal of record, it appears that the charge was framed and thereafter detailed trial has taken place as per the procedure for warrant. In the facts and circumstances of the case no illegality has been committed by learned Trial Court in convicting the Petitioners.

From perusal of the record, it is also evident that both the Courts below concurrently found that the Petitioners have committed offence for which the Petitioners have been convicted. This Court is well aware about the limitation of this Court while exercising the revisional jurisdiction, which does not empower re-appreciation of evidence. Hence so far as conviction is concerned the judgment passed by the learned Courts below is maintained.

So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the Petitioners and the nature of offence and the fact that Petitioners have already served substantive period of jail sentence the purpose would be served in case the jail sentence awarded to the Petitioners is reduced to the period already undergone, subject to depositing fine of Rs. 5,000/- each, totalling Rs. 10,000/-, within a period of two months, for which Counsel for the State also agrees, in default the Petitioners shall suffer jail sentence awarded by the learned Courts below.

In the result, revision petition is partly allowed. The findings of conviction is hereby maintained with the modification to the extent that the jail sentence awarded to the Petitioners is reduced to the period already undergone subject to depositing fine of Rs. 5,000/- each, totalling Rs. 10,000/-, within a period of two months, in default the Petitioners shall suffer jail sentence awarded by the learned Courts below. It is made clear that in case of arrest, if the Petitioners fails to deposit the amount, then, Petitioners shall be further liable to pay fine @ Rs. 50/- per day and shall be released forthwith, if not required in any other case. Petitioners are on bail. Their bail bonds stand discharged.

With the aforesaid modifications, the revision petition stands disposed of.