Pitambar Prusty vs State of Orissa

A.K. Padhi, J.—Challenging the conviction u/s 350 Cr.P.C. and sentence thereunder to pay a fine of Rs. 100/- in default to undergo sin-pie imprisonment for ten days, affirmed by the appellate Court, petitioner has approached this Court.

Short facts of this case are that the petitioner was working as M.V.I., under the R.T.O., Sambalpur. Summons were issued to him to attend the Court as a witness in G. R. Case No. 185 of 1985. Summons were personally received by the petitioner on 21-7-1987 and the date to which the case was posted was 25-7-1987. As the petitioner did not attend Court as a witness on 25-7-1987, a proceeding u/s 350 Cr.P.C. was initiated against him which was registered as Misc. Case No. 92 of 1987. Though notice was issued in Misc. Case No. 92 of 1987, the petitioner also did not appear in the said proceeding. Learned Magistrate without issuing N.B.W. or without taking any coercive measure for securing attendance of the petitioner in the proceeding, passed the judgment u/s 350 Cr.P.C. and sentenced him to pay a fine of Rs. 100/- in default, to undergo simple imprisonment for ten days.

Being aggrieved by the order in the proceeding u/s 350 Cr.P.C. the petitioner filed an appeal which was registered as Criminal Appeal No. 17 of 1983. The appellate Court dismissed the appeal on the ground that since the petitioner is a Government servant he should have been aware of the responsibility when he received the summons in G.R. Case No. 185 of 1985. Since he did not appear in the Court though summons were duly served on him, it tantamounts to disregarding the Court''s order and therefore the trial Court has rightly convicted the petitioner in the proceeding initiated u/s 350 Cr.P.C.

Learned advocate for the petitioner submits that the procedure as visualised u/s 350 Cr.P.C. having not been followed the conviction thereunder is not sustainable. Learned advocate for the State on the other hand submits that when the petitioner did not appear in spite of notice, the Court had no other option but to proceed against him according to law.

Section 250 Cr.P.C. provides a summary procedure for punishment for non-attendance of a witness in obedience to summons of a Court in any criminal trial. A person can be punished u/s 350 Cr.P.C. for non attendance as a witness in obedience to summons when (a) the summons is proved to have been served; and (b) the Court is satisfied that non-attendance was without just cause. Sub-section (2) of Section 350 Cr.P.C. indicates that in such a proceeding the Court shall follow the procedure prescribed for summary trials. Section 262,Cr.P.C. which provides for procedure for summary trials reads as follows :

"262. Procedure for summary trials : (1) In trials under this chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned.

(2) xx xx xx."

Section 251 of the Code of Criminal Procedure mandates that on appearance of the accused or when he is brought before the Magistrate, he should be appraised of the substance of the accusations and he must be asked whether he pleads guilty or has any defence to make. u/s 251 Cr.P.C. the trial begins when the accused appears or is brought before the Magistrate and not when he is asked to show cause why he should not be convicted. [See AIR 1947 Mad 306 N. Kandaswami Pillai and Anr. v. The Executive Officer, Panchayat Board, Attur (Salem Dt).]

In N. Kandaswami Pillai and Another Vs. The Executive Officer, Panchayat Board, while dealing with a proceeding u/s 250 Cr.P.C. Hon''ble Justice G.B. Pattnaik has observed that:

"Section 350 of the Code of Criminal Procedure no doubt, provides a summary procedure for punishment for non-attendance by a witness in obedience to summons.....................Admittedly in the present case neither the accused appeared nor was brought before the Magistrate, the particulars of the offence of which he is accused had not been stated to him. Neither he was asked as to whether he pleads guilty nor has any defence to make and therefore, the procedure of summary trials has not been followed. The Magistrate committed gross error in convicting the petitioner merely on receiving the show cause from him. In this view of the matter this is a fit case where the impugned order of the learned Magistrate must be quashed."

Ratio of this case fully applies to the case at hand. Admittedly, neither the accused-petitioner appeared nor was he was brought before the Magistrate by any coercive process. There was no occasion for the Magistrate to appraise the accused of the substance of the allegations against him. The learned Magistrate committed gross error in law in convicting the petitioner only when the show cause notice issued to him was made sufficient. Ordinarily when a procedure adopted by a Court is found to be illegal, then the matter is to be remitted to that Court to reconsider the same from that stage. In this case almost four years have passed. In my view, it is not a fit case to remit the matter for proceeding afresh and the impugned order should be quashed.

In the result, I quash the order of the learned trial Court passed in Criminal Misc. Case No. 92 of 1987, which was affirmed in Criminal Appeal No. 17 of 1988 by exercising my inherent power. The Criminal Revision is allowed.