Rajeshwar Prasad Singh vs The Province of Bihar

Narayan, J.—This application is directed against an order of Mr. B. Prashad, Sessions Judge of Gaya, upholding the conviction of the applicant u/s 47(a), Excise Act.

The prosecution case was that the applicant had been found in possession of one seer of ganja, and that he had admitted his guilt before two Excise officers. The learned Magistrate sentenced him to undergo rigorous imprisonment for a period of four months, and this sentence has been upheld by the learned Sessions Judge.

The rule was argued before us on three grounds, (i) that the learned Judge has committed an error of record inasmuch as he is wrong in his statement that "the evidence of Baldeo Chaudhury (p. W. 3), Saheb Singh (p. W. 4) and Baudha Pasi (p. w. 5) proves satisfactorily the prosecution story," (ii) that the learned Judge has not considered the evidence of the defence witnesses at all, and (iii) that the trial was illegal, because the learned Magistrate had omitted to state the particulars of the offence to the accused in accordance with the provisions of 8. 242, Criminal P. C.

The first two contentions are without any substance. Mr. K.K. Sinha for the applicant has taken us through the evidence, and after going through the evidence we are satisfied that the learned Judge has not committed any error of record. (After going through the evidence, his Lordship continued.)

It is also not correct to say that the learned Judge has not considered the evidence of the defence witnesses. We cannot find fault with his judgment simply because he has not considered the evidence of each of the defence witnesses separately. It is enough if, after discussing the defence version which the defence witnesses had come forward to prove, he expressed the opinion that the defence version was altogether unacceptable. His observation with regard to the defence version and defence evidence runs as follows:

The defence of the appellant in the Court below wag that he was on inimical terms with Saheb Singh and that the latter falsely implicated him in collusion with the Excise peon. The accused examined some witnesses to prove his defence. The cause of enmity, as given by the appellant, is that he as Mukhia (headman) of his village, did not allow his co-villagers to impound cattle in the kine house of Saheb Singh who is also a pound keeper. I am not prepared to believe that a false case of this nature could be manufactured by Saheb Singh in collusion with the Excise peon. It does not seem probable that the Exciss peon should have been a party to such a conspiracy.

In face of this observation, this Court as a Court of revision cannot hold that the defence version and the defence evidence have not been considered by the learned Judge.

The third point raised by the applicant''s learned lawyer is the most important point in the case, and it is because this important question arises in this case that our learned brother, Mahabir Prasad J., directed that the case should be placed before a Division Bench. This being a summons case, it was not necessary to frame a formal charge, but the provisions of Section 242, Criminal P.C., should have been complied with. This section runs as follows:

When the accused appears or is brought before the Magistrate the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted, but it shall not be necessary to frame a formal charge.

The question which arises is whether omission to state to the accused the particulars of the offence with which he is charged amounts to an illegality vitiating the trial, or is a mere irregularity curable by Section 637, Criminal P.C. This is not a case in which the Magistrate has submitted any explanation or report that the particulars of the offence were explained to the accused, though this was not noted in the order-sheet. The order-sheet does not at all indicate that the particulars were explained to the accused, and the relevant order runs as follows; "Accused appears. He should furnish bail of Rs. 500. Summon p.W.�s for 6th August 1946 as accused does not plead guilty." This is not compliance with the mandatory provisions of the section, and in absence of any report from the Magistrate stating that the particulars had been explained to the accused, it must be held that in this case the provisions of Section 242 were not at all complied with. The applicant''s lawyer has asked us to hold on the basis of the decision of the Calcutta High Court in Gopal Krishna Saha and Others Vs. Mati Lal Singh, and on the basis of a decision of this Court in Bhubaneshwar Prasad v. King-Emperor AIR 1936 Pat. 501 that non-compliance with the provisions of Section 243 vitiates the trial altogether, and is not a mere irregularity curable by Sections 535 and 537, Criminal P. C. The Calcutta decision relied on by the learned lawyer is the decision of a Division Bench of that Court, but the decision of this Court on which the learned lawyer relies is a decision by a Single Judge. In the Calcutta case Cuming J., who delivered the leading judgment, relied on the observation of the Privy Council in the well-known case of Subrahmania Ayyar v. King-Emperor 25 Mad. 61 to the effect that the disobedience to an express provision as to the mode of trial cannot be regarded as a mere irregularity. In the case of Subrahmania Ayyar 25 Mad 61 the appellant had been tried on an indictment*in which he had been charged with no less than forty-one acts, the acts extending or a period of two years. There was thus a clear contravention of Section 234, Criminal P.C., which provides that a person can only be tried for three offences of the same kind if committed within a period of twelve months. The following observation of their Lordships of the Judicial Committee is important for understanding the position which had been created in that case.

Upon the assumption that the trial was illegally conducted it is idle to suggest that there is enough left upon the indictment upon which a conviction might have been supported if the accused had been properly tried. The mischief sought to be avoided by the statute has been done. The effect of the multitude of charges before the jury has not been averted by dissecting the verdict afterwards and appropriating the finding of guilty only to such parts of the written accusation as ought to have been submitted to the jury.

This observation of their Lordships would lead us to appreciate how different the position is in a case in which only the particulars of the offence have not been explained to the accused though the accused has been examined u/s 342, Criminal P.C., and though no prejudice whatsoever has been caused to him because of the noncompliance with the provisions of Section 242. In the case of AIR 1927 44 (Privy Council) their Lordships of the Judicial Committee commenting upon the case of Subrahmania Ayyar 25 Mad. 61 observed as follows, and refused to follow that decision as authority in a case where in contravention of the mandatory provisions of the Code the depositions had not been read over to the witnesses.

There have been a number of decisions in India upon these enabling or curing sections, but the only important one which came before this Board is the case of Subrahmania Ayyar 25 Mad 61. There the trial of a man on charges of extortion in which 41 criminal acts extending over a period of two years were brought against him in contravention of a section of the Code which provides that a man can only be tried for three offences and those committed within a period of 12 months, was held bad and the conviction was quashed because the provisions of 8. 537 of the then Criminal Procedure Code did not cure it.

The distinction between that case and the present is fairly obvious. The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused.

Very recently their Lordships of the Judicial Committee had to consider in the case of P. Kottaya v. Emperor AIR 1947 PC 67 the principle on which the decision in the case of Subrahmania Ayyar 25 Mad. 61 had proceeded, and this is how their Lordships have explained the principle:

When a trial is conducted in a manner different from that prescribed by the Code as in Subrahmania Iyer v. King-Emperor 28 I.A. 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. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships'' Board in AIR 1927 44 (Privy Council) , where failure to comply with Section 360, Criminal P.C., was held to be cured by Sections 533 and 537.

Their Lordships discussed in this case the Madras decision, In re Madura Muthu Vannian AIR 1922 Mad 512 in which the view had been expressed that a failure to examine the accused u/s 342, Criminal P.C., was fatal to the validity of the trial and could not be cured u/s 537, and observed that to hold like that would be taking too narrow a view of the operation of Section 537. Section 342, Criminal P. C, is divided into two parts, and the second part of the section which lays down that the Court shall question the accused generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence, is a mandatory provision. In spite of this mandatory provision, it, is now well settled that the failure to examine the accused does not necessarily vitiate the proceedings and that the real criterion is whether there has been any failure of justice on account of the non-examination of the accused. Section 242 does not stand on a higher footing, and I think it can safely be held that non-compliance with the provisions of Section 242 cannot vitiate the trial if no pre-judice has been caused to the accused on account of the non-compliance and there has been no failure of justice. The decisions of the Judicial Committee in the case of Kottaya AIR 1947 PC 67 and AIR 1927 44 (Privy Council) lend support to my view. Their Lordships of the Calcutta High Court who decided the case of Gopal Krishna Saha and Others Vs. Mati Lal Singh, had not the advantage of these two Privy Council decisions and simply relied on the case of Subrahmania Ayyar 25 Mad. 61, about which it has now been definitely held that it does not lay down the broad principle that whenever there is a breach of a mandatory provision of the Code the trial is vitiated and that the illegality is not curable by Section 537. Though Varma J. in the case of Bhubneshwar Prashad Vs. Emperor, held that non-compliance with the provisons of Rule 242 was an illegality and not a mere irregularity curable by Sections 535 and ''537 of the Code, a different view was taken by Rowland J. in Firm Bhudermull Chandi Prasad and Another Vs. Firm Haji Mahammad Ali Jagarnath and Another, and by, Khaja Mohammad Noor J. in Gurudeo Ram v. King-Emperor 18 P.L.T. 582. I respectfully agree with the view which these learned Judges had taken, and hold that in a summons case the omission to explain the particulars of an offence to the accused is not an illegality vitiating the trial provided no prejudice can be shown to have been caused to the accused and the accused has been examined u/s 342, Criminal P. C. In this case before us the accused was examined u/s 342, Criminal P.C., and he had filed a long written statement in which he had pleaded his innocence and contended that the prosecution story was untrue and that the prosecution witnesses had all perjured themselves. It was never contended that any prejudice had been caused to the accused because of the non-compliance with the provisions of Section 242, and the point was not at all raised in the appeal before the Sessions Judge. Even before us, Mr. Sinha for the applicant frankly admitted that no prejudice had been caused to the accused because of the noncompliance with the provisions of Section 242.

In the result, none of the three objections is fit to succeed and the conviction of the appellant u/s 47(a), Excise Act, was perfectly justified.

The applicant''s earned Counsel lastly submitted that in case the conviction of the applicant is upheld his sentence should be reduced, especially in view of the fact that he has already suffered rigorous imprisonment for a period of about three weeks. In my opinion, the sentence in this case should be reduced. Only a seer of ganja has been recovered from the person of the accused, and he has already suffered rigorous imprisonment for a period of three weeks. I think a sentence of fine in addition to the imprisonment already undergone would be sufficient to meet the ends of justice. The application is dismissed with the modification in the sentence to the effect that the period of imprisonment is reduced to the period already undergone and the applicant is fined Rs. 50, in default of the payment of which he will have to suffer rigorous imprisonment for a period of one month.

Das J.

I agree.