State by Public Prosecutor vs Kamalanatha Singh

Padmini Jesudurai, J.—This appeal by the State, challenges the acquittal of the respondent by the Judicial Second Class Magistrate, Chengalpattu, in C.C. No. 722 of 1982 of an offence under S. 101(a) of the Indian Railways Act, 1890.

The charge against the respondent was that on 10-4-1981 between 4.00 p.m. and 5.17 p.m., at Kattankulathur Railway Station in the Station Master''s room, the respondent, who was on duty failed to communicate the movements of trains to the Southern Railway Madras Central Office through the control phone provided at Kattankulathur Station on the arrival and departure tunings of 108 passenger train. Down Goods Train and 161 Express Passenger Train, which passed through the said Railway Station.

The learned Magistrate, on a charge sheet being filed by the appellant, had taken the case on file and had framed charge against the respondent for the above offence, to which the respondent had pleaded ''not guilty''. Thereafter, the learned Magistrate, without recording evidence, accepting the oral submissions made by the learned counsel for the respondent, that the prosecution was not legally maintainable since the respondent and others had given a lawful strike notice under S. 22 of the Industrial Disputes Act 1947 and only thereafter had abstained from duty, and in such circumstances S. 37 of the above Act was a bar to the criminal prosecution, relying upon a decision of a learned single Judge of the Kerala High Court in K.K. Menon & others v. Sub Inspector & others 1982 K.L.N. 590 wherein a similar contention put forward by the learned counsel for the strikers had found favour, had acquitted the respondent under S. 255(1) of the Code of Criminal Procedure. Aggrieved by the above acquittal, the State has filed this appeal.

The learned Public Prosecutor for the appellant, by referring to the provisions of S. 255 Cr.P.C. would contend that after a case is taken on file and the accused has entered appearance, the procedure contemplated in S. 254 Cr.P.C. has to be allowed when the accused pleads ''not guilty'' and an opportunity should be given to the prosecution to adduce evidence and to prove the case and therefore, the acquittal under S. 255(1) Cr.P.C. without giving such opportunity and without the appellant adducing evidence is against law. The learned Public Prosecutor, therefore, submitted that the acquittal cannot be legally sustained.

Per contra, Thiru K. Asokan would contend that the provision of law which the learned Magistrate really intended to invoke, could only be S. 258 Cr.P.C. and not S. 255(1) Cr.P.C. and that quoting a wrong provision, would not render the judgment illegal and that therefore the acquittal could be legally sustained. The learned counsel also submitted that all the Station Masters in India, had given a strike notice under S. 22 of the Industrial Disputes Act and it was only thereafter, that the respondent had abstained from duty and S. 37 of this Industrial Disputes Act stipulates that there could be no prosecution and as such the present prosecution was ill-conceived. The learned counsel referred to the decision of the Kerala High Court, already mentioned, and would submit that there could be no criminal prosecution when workers abstain from work in a lawful strike.

The question that arises for consideration is whether the acquittal of the respondent by the learned Magistrate could be legally sustained.

The offence under S. 101(a) of the Indian Railway Act is a summons Case. Hence, the procedure contemplated in Chapter XX of the Criminal Procedure Code is to be followed. The learned Magistrate had chosen to frame a charge under S. 251, Cr.P.C. The respondent had pleaded ''not guilty''. The learned Magistrate thereafter had to follow the procedure laid down in S. 254, Cr.P.C. This provision requires the Magistrate to hear the. This provision requires the Magistrate to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. Thereafter, the learned Magistrate has to act under S. 255(1), Cr.P.C., which specifically indicates that if the Magistrate, after taking the evidence referred to in S. 254, Cr.P.C. and such further evidence, if any, as he may on his own motion cause to be produced, finds the accused not guilty, he shall record an acquittal. These two provisions read together clearly show, that when the accused pleads not guilty, the Magistrate has to proceed to take all such evidence as may be produced in support of the prosecution. It is not open to the Magistrate to shut out any evidence or to acquit the accused accepting the oral submissions made on behalf the accused, however valid the submissions could be. The prosecution should be given an opportunity to adduce evidence and whatever evidence is adduced, has to be taken down by the learned Magistrate. It is not the case of the learned magistrate that the prosecution did not offer any evidence. Accepting the preliminary objection taken by the learned counsel for the respondent, the learned magistrate has by passed S. 254 Cr.P.C. and has rendered a judgment acquitting the respondent. Such a procedure is contrary to what is laid down in S. 254 Cr.P.C. The acquittal or conviction could be given only after evidence is recorded. The procedure followed in this case is clearly illegal.

The learned counsel for the respondent, however, would try to save the judgment by submitting that the learned Magistrate really intended to act under S. 258 Cr.P.C., since he had stated in his judgment that it is not desirable to proceed further with the trial and that the intention of the learned Magistrate was only to stop the proceedings.

S. 258 Cr.P.C. is as follows:

Power to stop proceedings in certain cases:- In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.

A mere reading of S. 258 Cr.P.C. would show that the learned Magistrate could not act under S. 258 Cr.P.C. This provision enables a Magistrate 01 the First Class or with the previous sanction of the Chief Judicial Magistrate or any other judicial Magistrate for reasons, to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where the stoppage of proceedings is made, after the evidence of the principal witnesses had been recorded, pronounce a judgment of acquittal. In any other case, the Magistrate has to release the accused and such release would have the effect of a discharge. In the first instance, the learned Magistrate was only a Second Class Magistrate. There is nothing to indicate that any previous sanction of the Chief Judicial Magistrate was ever obtained. Further, when no evidence is recorded, the Magistrate without stopping the proceedings cannot pronounce a judgment. In the instant case, though no evidence has been recorded, the Magistrate has pronounced a judgment. Pronouncing a judgment is permitted only when the evidence of the principal witnesses has been recorded. While so, acquitting the respondent in a judgment pronounced by the learned Magistrate without the previous sanction of the learned Chief Judicial Magistrate and without recording evidence would not satisfy the requirements of even S. 258 Cr.P.C. The judgment is patently illegal and has to be set aside.

The final contention of the learned counsel for the respondent is that S. 37 of the Industrial Disputes Act is a bar to the present prosecution since a legal strike-notice under S. 22 of the said Act had been issued. Though a learned Judge of the Kerala High Court, in the case referred to above, has accepted such a contention, to what extent this court would agree with the view taken by the learned Judge or the Kerala High Court cannot be predicted. All that S. 37 of the Industrial Disputes Act provides is that no suit, prosecution or other legal proceedings would lie against any person, for anything which is in good faith done or intended to be done in pursuance of that Act or any rules made thereunder.

A reading of S. 22 of the Industrial Dispute Act shows that merely because a strike notice had been given, the strike would not become legal. The conditions stipulated in S. 22 will have to be followed in the instant case the learned Magistrate has not taken any evidence. Though the learned counsel for the respondent has produced a copy of the strike notice said to have been given under S. 22(1), from the judgment we find that no documents have been marked as evidence. Merely on the oral representation of the learned counsel for the respondent in the trial court, the learned Magistrate has acquitted the respondent. However, since I am setting aside the acquittal for the reasons mentioned earlier, I am not going into the question as to whether S. 37 of the Industrial Disputes Act would save the respondent from prosecution.

Though the acquittal has been set aside, in view of the fact that the occurrence had taken place more than ten years ago, it is needless to order a retrial. The legality of the acquittal having been determined, the matter is left at that. With these findings regarding the legality of the acquittal, this appeal is dismissed.