Ram Chand vs The State

Gurdev Singh, J.—In this reference u/s 438 of the Criminal Procedure Code, an Additional Sessions Judge of Delhi has made a recommendation for setting aside the conviction of Ram Chand u/s 421 of the Municipal Corporation Act 1957 and sentence of fine of Rs. 2/- or in default of payment of fine to suffer seven days'' simple imprisonment.

Ram Chand was prosecuted under sections 417, 421 and 461 of the Delhi Municipal Corporation Act, 1957. He was tried summarily and convicted and sentenced as mentioned above by Shri Balbir Singh, Magistrate First Class, Delhi. No appeal was competent against this order as the sentence was one of fine of Rs. 2/- only, but Ram Chand went up in revision to the Court of Session assailing his conviction and the legality of his trial. The learned Additional Sessions Judge, being of the opinion that the allegations made against Ram Chand did not constitute an offence u/s 421 of the Delhi Municipal Corporation Act, has forwarded the records of the case to this Court with the recommendation that his conviction be quashed and sentence set aside.

On perusal of the trial Courts record, I find that this is one of the glaring examples of the manner in which Magistrates invested with jurisdiction to try cases summarily are prone to act, taking advantage of the fact that no appeal lies against their orders and persons charged with petty offences are often reluctant to undergo the expense and botheration not only of defending themselves on merits but also of approaching the High Court for redress. The procedure for summary trial of cases is laid down in Chapter 22 of the Criminal Procedure Code. Section 262 lays down that even in such trials the procedure laid down for summons cases shall be followed if the offence is triable as a summons case, and that of warrant cases where the offence is triable as a warrant case.

Section 263 of the Criminal Procedure Code prescribes the nature of the record that has to be kept in non-appealable cases. Though it is stated that in such cases the Magistrate need not record evidence of witnesses or frame a formal charge, yet he is required to enter in such form as the State Government may direct, various particulars detailed in this section. One of such particulars being "the offence complained of and the offence (if any) proved..."

On reference to the record of the trial Court in the present case, we find that the entry under heading "offence complained of or proved" is "417, 421, Municipal Corporation Act". Though in the last column relating to the sentence it is recorded that the accused is convicted only u/s 421 of the Delhi Municipal Corporation Act, in the column relating to "the prisoner''s plea" it is stated "pleads guilty".

This plea of guilty, however, does not make much sense. In the column relating to the offence complained, of no particulars of the offence for which the petitioner is prosecuted are given, and mention is made both of sections 417 and 421 of the Municipal Corporation Act. These two sections are quite distinct, and the record of the proceedings does not disclose to which of them the petitioner had pleaded guilty as his full plea was not recorded by the Magistrate. Considering the fact that the Magistrate recorded the petitioner''s conviction only u/s 421, it can be presumed that the petitioner did not plead guilty to both the charges, viz., under sections 417 and 421 of the Delhi Municipal Corporation Act. Section 417 of the Delhi Municipal Corporation Act runs as follows:-

417(1) No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, namely:-

(a) any of the purposes specified in Part I of the Eleventh Schedule;

(b) any purpose which is, in the opinion of the Commissioner dangerous to life, health or property or likely to create a nuisance;

(c) keeping horses, cattle or other quardruped animals or birds for transportation, sale or hire or for sale of the produce thereof, or

(d) storing any of the articles specified in Part II of the Eleventh Schedule except for domestic use of any of those articles;

Provided that the Corporation may declare that premises in which the aggregate quantity of articles stored for sale does not exceed such quantity as may be prescribed by bye laws in respect of any such articles should be exempted from the operation of clause (d).

From this, it is obvious that a mere mention of section 417 in the proceedings would not be sufficient notice of the charge on which the accused is tried as different clauses of this section apply to different sets of facts and circumstances.

Section 421 of the same Act lays down:-

(1) No person shall without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, keep any eating house, lodging house, hotel, boarding house, tea shop, coffee house, cafe, restaurant, refreshment room or any place where the public are admitted for repose or for the consumption of any food or drink or any place where food is sold or prepared for sale.

(2) The Commissioner may at any time cancel or suspend any licence granted under sub-section (1) if he is of the opinion that the premises-covered thereby are not kept in conformity with the conditions of such licence or with the provisions of any bye-law made in this behalf, whether the licensee is prosecuted under this Act or not.

The ingredients of these two sections 417 and 421 are quite different though the contravention of both of them is punishable u/s 461, which does not find mention in the proceedings recorded by the Magistrate. In Abdul Rehman v. Emperor AIR 1934 Lah 596. Shadi Lal C.J., held that the accused had a right to be informed of the precise nature of the offence with which he was charged, and a bare reference to the section of the statute was not sufficient, especially when the section created more than one distinct offence.

In the State v. Ram Parkash AIR 1951 HP13, Kapur, J. (now of the Supreme Court) while dealing with a case in which the entry in the column "offence complained of and proved" was "The accused sold milk wholly composed of separated milk" held that this was not sufficient compliance with the mandatory provision of section 263 of the Criminal Procedure Code, and emphasising the necessity of strict compliance with the procedure prescribed by law, expressed himself somewhat strongly in these words:-

Merely because the trial is a summary one and the accused is not in a mood or is unable to contest the allegations made against him does not seem to be any reason in a criminal case for not following procedure laid down and specifying the offence which a person is being tried for. I have had an occasion before to say that it is the duty of the Magistrate not only to do justice but also to demonstrate that justice is being done, and slipshod and slovenly manner of trying cases brings the whole judicial administration into contempt.

Even in Abdul Rehman''s case AIR 1934 Lah 596 to which a reference has already been made, Shadi Lal C.J., while insisting on strict compliance with the provisions of section 263 said:-

As observed by a Division Bench of the Calcutta High Court in Kesh Mohammad v. Queen-Empress 3 Cr. L.J. 178, it has been repeatedly pointed out that in the case of a summary trial, in which so little is recorded, and, therefore, there is no little protection from without to the person accused, against the risk of error, haste or inaccuracy, the scanty provisions of that section must be fully and strictly complied with in this sense that the record must be sufficiently exact and sufficiently full to enable the Judges of the Revisional Court to say whether the law has been complied with or not on the points to be recorded.

Proceeding further, the learned Chief Justice observed:-

Three particular things amongst others are required to be recorded, under the heading (f) the offence complained of, and the offence, if any, proved, and under the heading (h) in the case of conviction, a brief statement of the reasons therefor must be recorded. These three things, the offence charged, the offence, if any, proved and the reasons for convicting, must be recorded and recorded in such a way as to enable the Court of Revision to say, yes or no, from with the four corners of the record itself, whether the offence charged is an offence in point of law, whether the offence proved is an offence in point of law, and whether the reasons for the conviction are good and sufficient reasons.

I am in respectfull agreement with the view taken by the two eminent Judges, Shadi Lal C.J. and Kapur J. and find no escape from the conclusion that the learned trial Magistrate had not complied with, by merely entering the section under which the petitioner was tried and convicted, the provisions of section 263 of the Criminal Procedure Code.

There is another reason for which the trial is vitiated. As the record stands, it shows that the petitioner was confronted with the allegation that he had committed an offence u/s 417 and also u/s 421 of the Municipal Corporation Act. The two sections apply to different sets of facts, and it cannot be said that the admission of guilt under one section amounts to the confession of guilt under the other. In these circumstances, it becomes impossible to ascertain to which charge the petitioner had pleaded guilty. The record kept by the Magistrate on the other hand discloses that neither the precise charge nor the allegations on which he was tried were put to him.

Section 263 requires that the plea of the accused should be recorded. There is ample authority for the proposition that this plea should be taken down as nearly as possibly be in the words used by the accused The record of the Magistrate must show the facts put to the accused-person and admitted by him so as to enable the Court of revision to say whether the offence charged is an offence in point of law, and whether the facts admitted constituted an offence. In the present case, it is not possible to ascertain from the record kept by the Magistrate either the nature of the allegations put to the accused or the facts admitted by him. In these circumstances, the contention that the petitioner did not plead guilty to the charge for which he had been convicted cannot be rejected as untenable.

The more one goes into the record of the proceeding kept by the Magistrate the more one feels convinced that the learned Magistrate, who is invested with summary powers, has dealt with the case in a most light-hearted manner. He has not even taken the trouble of recording an order of the petitioner''s conviction in his own hand, but his order is in the form of a rubber stamp in which he has merely filled up a couple of blanks. This is again in contravention of the provisions of section 265 of the Criminal Procedure Code, which requires that the proceedings u/s 263 and the judgment recorded u/s 264 shall be written by the presiding officer himself. The resort to the use of a rubber stamp for such purposes is not only unwarranted but can well lead to abuse in several cases. The recording of a judgment by a rubber stamp creates an impression that the Magistrate either shirked his duty or abdicated his functions, authorising one of his subordinate officials to obtain pleas of guilty from the accused and then to endorse the same by affixing his signatures over the rubber stamps. Even in petty cases, the accused is entitled to a fair trial in accordance with law, and the fact that only senior Magistrates are empowered to try cases summarily indicates that the exercise of this jurisdiction is a work of responsibility. It must, therefore, be exercised in a responsible manner and not in a casual or callous way. The Magistrates should avoid the temptation of resorting to short-cuts encouraged by the helpless attitude of persons who have the misfortune of being tried summarily and consider more convenient to pay fine in obedience to the order of the Magistrate rather than undergo the expense and botheration of assailing their conviction by way of a petition for revision to this Court.

From what has been said above it is manifest that the entire proceedings resulting in the conviction of the petitioner contravene the mandatory provisions of law and must be quashed. In view of the petty nature of the offence, which is obvious from the fact that the trial Magistrate has sentenced the petitioner to a fine of Rs. 2/- only, there is no justification for retrial. I, accordingly, accept the petition, and setting aside the conviction and sentence of Ram Chand, acquit him. The fine, if paid, shall be refunded to him on his application.