Ramdas vs State

P.R. Sharma, J.—The applicants were convicted and sentenced by the Magistrate First Class Dabra of an offence u/s 379 IPG to pay a fine of Rs. 50/- each, or in default of payment of fine to undergo simple imprisonment for one month. A revision preferred by the Petitioners against their conviction and sentence in the Court of Sessions at Datia having been dismissed, they have now come up in revision before this Court.

The undisputed facts of this case, which are material for the decision of this revision petition, are that the case started on a private complaint u/s 379 IPC. It was tried summarily, the prosecution witnesses were examined and cross-examined and the plea of the accused was recorded. The Magistrate did not thereafter require the accused to state whether they wished to cross-examine any of the prosecution witnesses, whose evidence had already been recorded.

The proceedings of the trial Court dated the 5th of July, 1961 merely state that the accused were examined u/s 379 IPC, that they were called upon to enter defence and that they did not produce any. The case was reserved on that day for judgment and the accused were convicted and sentenced already stated above.

Section 262 of the Code of Criminal Procedure lays down the procedure to be followed in a summary trial. It runs as under:

In trials under this Chapter, the procedure prescribed for summons-cases, shall be followed in summons-cases, and the procedure prescribed for warrant-cases shall be followed in warrant-cases except as hereinafter mentioned.

The words "except as hereinafter mentioned" indicate that in the trial of a warrant case tried summarily the procedure prescribed for warrant cases must be followed except in such matters as are mentioned in Sections 263 to 265 Cr. P. C. It would necessarily follow that a variation from the procedure prescribed for the trial of warrant cases can be permitted in summary trials only in such respects as are expressly provided for in the sections which follow Section 262 Cr. P. C. The only exception to the procedure which is provided for in Section 263 Cr. P. C. is that in cases where no appeal lies the Magistrate need not record evidence of the witnesses or frame a formal charge. No other exception can, in my opinion, be inferred by implication: inasmuch as a thing cannot be said to be mentioned even if no mention is made of it. I am, therefore, of the opinion that in those cases where no appeal lies, the requirements of S. 256 Cr. P. C. cannot be deemed to be dispensed with by anything contained in the provisions of S. 263 Cr. P. C. I am supported in this view by the cases reported in Nepal Bagdi v. Emperor 22 Cr. L. J. 271, Kamlakant v. Emperor AIR 1920 Calcutta page 769, Munna v. Emperor MR 1954 E. P.504, Kamala Kanta Ghosh and Another Vs. Emperor, . The contrary view taken in Umaji Krishnaji Sonavni Vs. Emperor, and in Gokaren v. Emperor AIR 1932 Oudh 242, does not seem to be correct inasmuch as it fails to give due effect to the words except as hereinafter mentioned used in S. 262 of the Code of Criminal Procedure.

The next question to be decided is whether in a case in which the Magistrate was bound to follow the procedure laid down u/s 256 Cr. P. C., an omission by him to require the accused to state if he wished any of the prosecution witnesses to be re-called for further cross-examination, is in itself sufficient to vitiate the trial. The provisions of S. 256 cast a duty upon the Magistrate in all cases in which the accused refuses to plead, or does not plead, or claims to be tried, to require the accused to state whether he wishes to cross-examine any and if so which of the witnesses for the prosecution whose evidence has been recorded. It has been held in a number of cases that an omission on the part of the Magistrate to ask the accused whether he intends to re-call any of the prosecution witnesses, vitiates the trial. See cases reported in Molla v. Emperor 16 Cr. L. J. 146, Girdharilal v. Emperor 31 Cr. L. J. 705. In re Raju Achari 28 Cr. L. J. 12; Maruda Muthu v. Annian AIR 1922 Mad. 512; and Nisar Ahmad v. Emperor 40 Cr. L J. 419. The Oudb, Allahabad, Calcutta and the Patna High Courts have among others, held that the provisions of S. 256 Cr. P. C. are merely directory in nature and non-compliance therewith can be cured u/s 537 Cr. P. C., if there has been no failure of justice. I do not in view of the decision in Kottaya v. Emperor AIR 1947 P. C. 67, consider it necessary to refer to the cases which dwell on the point whether the provisions of S. 256 Cr. P. C. are mandatory or directory in nature. It was observed therein by their Lordships of the Privy Council as follows: -

The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind.

It was further laid down by their Lordships in that cue that ''when a trail is condicted in a manner different from that present d by the Code, the trial is bad and no question of curing an irregularity would arise, 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 Cr P. C. and none-the-less so because irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code.''

The question whether the omission to comply with the provisions of S. 256 Cr P. C. vitiates the trial must, therefore, be examined in the light of the principles laid down by their Lordships of the Privy Council in Kottaya''s case (supra) and authorities on either side which are based on a line of reasoning not in consonance with the principles laid down by their Lordships can no longer be deemed to be good law.

As already stated by the above the effect of the provisions of Section 262 of the Code is that in a warrant case tried summarily, the procedure laid down for the trial of warrant cases must be followed, except in so far as it has been dispensed with by an express provision in that behalf. By submitting to follow the procedure prescribed by S. 256 Cr. P. C. an important point of distinction between the modes of trial of summons and warrant cases started on a complaint, is done away with. Such an omission should, in my opinion, be deemed to affect the mode of the trial and must, in view of the principles laid down by the Privy Council, be held to vitiate the trial irrespective of the question of prejudice. Where the mode of trial is not affected, the question whether or not prejudice has been caused will be material for the purpose of deciding if the irregularity can be cured under the provisions of S. 537 Cr. P. C.; but where the failure to comply with any statutory provisions has affected the mode of trial, considerations of prejudice do not at all enter into the question.

It must, therefore, he held that the omission by the learned Magistrate in the present case to call upon the accused to state if they intended to cross-examine any of the prosecution witnesses whose evidence had been recorded, has vitiated the trial. The fact that the accused did not ask for any of the witnesses to be recalled would have been relevant only if absence of prejudice resulting from such an omission could cure the illegality.

This revision application is, therefore allowed, the order of conviction and sentence passed against the applicant is hereby set aside and the case is remanded to the trial Court for re-trial and disposal in accordance with law.