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Emperor Vs. Narji Bhalji Bhil - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 816 of 1949
Judge
Reported inAIR1950Bom273; (1950)52BOMLR321
ActsBombay Prohibition Act, 1949 - Sections 116; Code of Criminal Procedure (CrPC) , 1898 - Sections 260, 261 and 262(2)
AppellantEmperor
RespondentNarji Bhalji Bhil
Advocates:V. N. Chhatrapati, Adv.;H.M. Choksi, Government Pleader
DispositionAppeal allowed
Excerpt:
.....of the criminal procedure code, 1898, even if such magistrate is not specially empowered to try cases summarily as provided in section 260(1)(b) of the code. in such a case, the magistrate is competent to award the sentence prescribed by section 65 of the act, and is not confined to pass a sentence of imprisonment for a term not exceeding three months, as required by section 262 (2) of the code.;magistrates, who are empowered under sections 260 and 261 of the criminal procedure code, can try summarily only the offences mentioned in those sections. they cannot try any other offence in a summary manner, unless that power is given to them by some other provision of law.;emperor v. ganu sadu (1928) i.l.r. 52 bom. 254, s.c. 30 bom. l.r. 371 referred to.;section 116 of the bombay..........was tried by the additional resident magistrate, first class, dohad, who is not empowered to try cases summarily. the accused pleaded guilty to the charge. this plea was accepted and the accused was sentenced to six months' rigorous imprisonment and a fine of rs. 500. he appealed to the sessions judge, panch mahals, who set aside his conviction and sentence on the grounds that under section 116, bombay prohibition act the case should have been tried summarily by a magistrate, who was empowered to try cases in a summary manner and that as the accused had been tried by a magistrate who was not so empowered, his conviction was illegal. the sessions judge, therefore, ordered the retrial of the accused. the government of bombay have come in appeal against the order passed by the sessions.....
Judgment:

Chainani, J.

1. This is an appeal by the Government of Bombay. The facts of the case, out of which this appeal arises, are briefly these. On 13th August 1949, the police raided the hut of the accused. He was then found in possession of 5 seers of soaked mohura flowers. A boiler and other implements for manufacturing liquor were also found in the hut. The accused was them prosecuted Under Section 65(f), Bombay Prohibition Act, 1949. He was tried by the Additional Resident Magistrate, First Class, Dohad, who is not empowered to try cases summarily. The accused pleaded guilty to the charge. This plea was accepted and the accused was sentenced to six months' rigorous imprisonment and a fine of Rs. 500. He appealed to the Sessions Judge, Panch Mahals, who set aside his conviction and sentence on the grounds that Under Section 116, Bombay Prohibition Act the case should have been tried summarily by a Magistrate, who was empowered to try cases in a summary manner and that as the accused had been tried by a Magistrate who was not so empowered, his conviction was illegal. The Sessions Judge, therefore, ordered the retrial of the accused. The Government of Bombay have come in appeal against the order passed by the Sessions Judge.

2. Section 116, Bombay Prohibition Act is in the following terms :

'In all trials for offences under this Act, the Magistrates shall follow the procedure prescribed in the Code of Criminal Procedure for the trial of summary cases in which an appeal lies.'

This section prescribes the procedure in accordance with which the offences punishable under the above Act are to be tried. It lays down that these offences should be tried in a summary manner, but it does not specify which Magistrate should try them in that manner. The procedure to be followed in the trial of summary cases, in which an appeal lies, is laid down in Sections 262 and 264, Criminal P. C. Under Section 260 and 261, apart from District Magistrates, the only Magistrates who can try cases summarily are Magistrates who are specially empowered by the Provincial Government in that behalf, It has, therefore, been urged on behalf of the accused that as Section 116 is silent as to which Magistrates can try cases arising Under this Act summarily, the words 'the Magistrates' in this section must be interpreted to mean the Magistrates who are competent to try cases in a summary manner. It has also been contended that under the Code Second and Third Class Magistrates (except Benches of such Magistrates, see Section 261) cannot be empowered to try cases in a summary manner and that the Legislature could not, therefore, have intended to authorise such Magistrates to try summarily offences under the Prohibition Act. The learned Government Pleader has, on the other hand, argued that all that Section 116 does is to direct that every person accused of an offence punishable under the Act shall be tried in a summary way, that it does not curtail or affect in any way the ordinary jurisdiction of Magistrates to take cognisance of and try offences, that the question which Magistrate is competent to try offences under the Act is to be determined by reference to Schedule II to the Code of Criminal Procedure and teat consequently offences under the Act can be Mad summarily not only by Magistrates, who are empowered Under Sections 260 and 261 of the Code, but by any Magistrate who would be competent to try them Under Schedule II to the Code. The question is not free from difficulty. Section 36 of the Code and schedule III specify the ordinary powers of Magistrates. The power to try cases summarily is not one of these powers, but has to be conferred specifically Under Section 260 or 261, see also Schedule IV to the Code. It is, therefore, possible to argue that as the power to try cases in a summary manner is not one of the ordinary powers of a Magistrate, the only Magistrates who can try offences punishable under the Prohibition Act are Magistrates who are empowered to try cases summarily. The Magistrates who are empowered Under Sections 260 and 261 can, however, try summarily only the offences mentioned in those sections. They cannot try any other offences in a summary manner, See Emperor v. Ganu Sadu 52 Born. 254: A. I. R 1928 Bom. 142 The fact that a Magistrate is empowered under the Code to try cases in a summary way would not, therefore, enable him to try summarily all offences under the Prohibition Act, unless this power is given to him by some other provisions of law. Apart from Section 116, Prohibition Act, there Is no provision either in this Act or in the Code under which Magistrates have been or can be empowered to try summarily all the offences punishable under this Act. The power to try a case and the manner in which it is to be tried are two different matters. It seems to me that Section 116 deals only with the second matter, i.e. about the mode of trial and that it does not curtail the ordinary powers of Magistrates to take cognisance of and try offences, but on the other hand, it authorises all Magistrates to follow the summary procedure while trying offences under the Act.

3. The other reason why the interpretation advanced on behalf of the accused cannot be accepted is that Presidency Magistrates would not then be able to try offences under the Prohibition Act. Section 116, as stated in the section itself, applies to all trials for such offences, including those held in the City of Bombay. Chapter XXII, Criminal P. C., which prescribes the procedure for the trial of summary cases, does not apply to the Presidency Magistrates. The procedure which such Magistrates have to follow in regard to recording of evidence in appealable cases is laid down in Section 362 in chap. XXV of the Code. Therefore, if the view that only those Magistrates, who are empowered Under Sections 260 and 261 to try cases summarily, can try cases arising under the Prohibition Act, is accepted, the Presidency Magistrates will not be able to try such cases. This could not possibly have been intended by the Legislature. The number of Magistrates exercising summary powers in the mofussil is also very limited: and I do not think that the Legislature wanted to put parsons accused of offences under the Prohibition Act to considerable inconvenience and expense, which they would have to undergo if these cases were triable by such Magistrates only.

4. I am, therefore, of the opinion that offences punishable under the Bombay Prohibition Act can be tried by any Magistrate who is competent to try them Under schedule 2, Criminal P. C. whether he is empowered Under Section 260 to try cases in a summary manner or not. It is true that second and third class Magistrates would also be able to try such cases in a summary manner, but as this appears to be the intention of the Legislature, effect must be given to it.

5. It has also been contended that in view of Sub Section (2) of Section 262, Criminal P. C, the accused cannot be awarded a sentence of imprisonment exceeding three months. Section 262 is in chap, XXII of the Code and Sub-Section (2) of this section provides that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction 'under this Chapter'. It has been urged that this is one of the provisions of the Code laying down the procedure for the trial of summary cases, and as Under Section 116, Prohibition Act, the offences under this Act are to be tried in accordance with the procedure prescribed in the Code for the trial of summary cases, no sentence of imprisonment exceeding three months can be passed in the case of conviction for any such offence. I do not think that this contention is sound. The words 'any conviction under this Chapter' in Sub Section (2) of Section 262 show that this sub section applies only in those cases which are tried summarily by reason of the provisions contained in that chap. XXII, that is, in the case of conviction for any of the offences specified in Sections 260 and 261 of the Code. The question of sentence is also not a matter of procedure. A provision in a statute prescribing a sentence for any act imposes a liability or a penalty for that act and is, therefore, a substantive provision of law and not one dealing with a matter of procedure. Section 116 prescribes the procedure for the trial of cases arising under the Prohibition Act. Sub-Section (2) of Section 262 will, therefore, not apply in such cases. Section 65, Prohibition Act and other sections of this Act prescribe minimum sentences of imprisonment exceeding three months in respect of several offences, Sub-Section (2) of Section 260 of the Code provides that when in the course of a summary trial it appears to the Magistrate that the case is one which is of a character which renders it undesirable that it shall be tried summarily, the Magistrate shall proceed to re-hear the case in manner provided by the Code. This provision, therefore, enables a Magistrate to try a case in the ordinary manner, if he feels that it is one in which a sentence exceeding three months should be imposed. It cannot be resorted to by Magistrates trying cases under the Prohibition Act, as Under Section 116 all such cases are to be tried in a summary way. The provisions in the Act prescribing minimum sentences exceeding three months will therefore be rendered nugatory, if the argument that Sub-Section (2) of Section 262 applies in such cases is accepted. The true meaning of any part of a statute is that which best harmonizes with every other part of it and a construction which will leave without effect any part of a statute must be rejected (see Maxwell on Interpretation of Statutes, 9th Edition, pages 31 and 19). Section 116 of the Act must therefore, be read along with the provisions prescribing minimum sentences of imprisonment exceeding three months for many offences, and if this is done, it will be clear that the Legislature did not intend that Section 262 (2) of the Code should apply in the case of convictions for such offences. In my opinion, therefore, sentences of imprisonment for periods exceeding three months can be awarded for offences punishable under the Bombay Prohibition Act, even though they are tried in a summary way.

6. The order passed by the learned Sessions Judge reversing the conviction of and the sentence passed upon the accused and ordering his re-trial is, therefore, set aside and the order by the Additional Resident Magistrate, First Class, convicting the accused Under Section 65(f), Prohibition Act and sentencing him to six months' rigorous imprisonment and a fine of Rs. 500 or in default rigorous imprisonment for two weeks is restored. A warrant for the arrest of the accused to issue.

Bavdekar, J.

7. Had it not been for Section 116, Bombay Prohibition Act, the Magistrate who would be empowered to try offences under the Act under the provisions of schedule II, Criminal P. C. would have had to try the cases under the ordinary procedure, that is, in summons cases the procedure provided for a summons case and the procedure prescribed for a warrant case for warrant cases. Section 116 makes a change and the question is to what extent a change has been effected. One argument which has been addressed to us is that the section makes all trials for offences under the Prohibition Act compulsorily triable by Magistrates who were empowered Under Section 260, Criminal P. C., and it renders illegal the summary trial of offences other than those which come Under Section 260 of the Code. It is said that in all trials of offences under the Act, summary procedure must be followed. The summary procedure cannot be followed is the first instance unless the Magistrate is empowered to try cases summarily. In the second instance Under Section 260, the summary procedure can only be valid in those cases in which it is warranted by the provisions of that section. That means that there is no enlargement of the eases which could be tried summarily. But there is restriction as to the class of Magistrates which can try the offences.

8. The second argument which has been addressed to us is that even if the latter contention is not correct that is if the class of offences which could be tried in a summary manner is held to have enlarged the powers could be exercised only by Magistrates empowered under Section 260 of the Code.

9. Now it appears to me that on reading Section 116, Prohibition Act, we have got in the first instance to interpret; the words in the ordinary manner. The first part of the section says 'in all trials for offences under this Act'. The words 'in all trials for offences under the Act' are perfectly general and admit of no exception whatsoever. Then it goes on to say 'the Magistrates', where again there is no qualification or limitation of the word 'Magistrates'. It is said that it is obvious that the Magistrates who could follow the procedure would be those Magistrates who who can try those cases. That is necessarily so. But the reason why it is only the Magistrates who are competent to try the case can follow the procedure is not that the section imposes a limitation on the class of Magistrates who can follow the procedure. The procedure to be followed is one question and competence to try the case is another question. And why a Magistrate who can follow the procedure is a Magistrate who can try the case is that unless there is in the first instance competency to try a case there could be no question of following any procedure at all summary or otherwise. It is not as if, therefore, Section 116 has got to be read as if after the words 'the Magistrates' the words 'competent to try the case' were introduced. It has got to be read in the ordinary manner, and if it is read in that manner, the effect is that the procedure which would be followed by any Magistrate who is trying a case under the Prohibition Act would be the summary procedure in cases in Which an appeal lies.

10. It is said, however, that there is something in what follows which excludes the ordinary Magistrates, that is, the words 'shall follow the procedure prescribed in the Code of Criminal Procedure, 1898, for the trial of summary cases in which an appeal lies.' Now it is true that the procedure which is prescribed for the trial of offences under the Act is the procedure laid down by the Code of Criminal Procedure for the trial of summary cases in which an appeal lies. But that does not mean that the procedure can only be followed by the Magistrates who are empowered to try the cases summarily. The section need not have been worded in that manner. And I would read the section as If it has been worded: 'In all trials for the offences under this Act the Magistrate shall : (a) follow the procedure prescribed for summons cases in summons cases and the procedure prescribed for warrant cases in warrant cases except as provided for just below; (b) before passing the judgment he shall record judgment embodying the substance of the evidence and the following particulars: (1) the serial number; (2) the date of the commission of the offence: (3) the date of the report of complaint: (4) the name of the complainant (if any); (5) the name, parentage and residence of the accused: (6) the offence complained of and the offence (if any) proved, and in case coming Under clause (d), clause (e), clause (f) or clause (g) of Sub-Section (1) of Section 260 the value of the property in respect of which the offence has been committed; (7) the plea of the accused and his examination (if any); (8) the finding, and, in the case of a conviction, a brief statement of the reasons therefor; (9) the sentence or other final order; and (10) the date on which the proceedings terminated. Such judgment shall be the only record in cases of trials for offences under this Act.' It is obvious that if the section had been so worded there would have been no scope for arguing that because of what follows the words 'The Magistrates' the Magistrates must necessarily mean those empowered to try cases summarily under the Code of Criminal Procedure, 1898. It is true that the procedure laid down is that for summary cases under the Code in which no appeal lies, but the section may well have made slight changes, e. g. that the evidence should be taken down not indeed verbatim but in the term of a memorandum or that a charge shall be framed. One could hardly advance an argument in that case that because of what follows the words, 'the Magistrate', they should be limited to mean those Magistrates who were empowered to try offences summarily. It seems to me that it makes no difference that Section 116, instead of laying down a slightly different procedure lays down for the trials of offences exactly the same procedure as the Code of Criminal Procedure provides for trials of offences summarily in cases in which no appeal lies.

11. It is said that if we were to accept this argument, the effect would be that Second Class or Third Class Magistrates would be empowered to follow the summary procedure. One of the safeguards the Code of Criminal Procedure provided undoubtedly was that the powers to try cases summarily could be exercised by the highest class of Magistrates only. It is said that if we were to accept the interpretation which has been put forward, the lower class Magistrates will be given powers which is not desirable. Now, whether it is desirable to give Magistrates these powers or not that was a matter for the Legislature. But if we were to accept the interpretation which has been urged on behalf of the accused persons, it is obvious that the Presidency Magistrates would not be able to try the cases under the Prohibition Act summarily. It is true that Presidency Magistrates follow a shorter procedure in cases in which no appeal lies, but the Legislature could hardly have regarded them as less fitted to try summarily cases in which an appeal lies.

12. This argument does not, therefore, seem to afford any criteria for the interpretation of the section. I would therefore, follow the literal construction and inasmuch as the literal construction gives the meaning that all Magistrates shall follow the procedure prescribed, it is necessary for those who say that the literal construction is to be limited to show that it must be limited for some particular reason. In this case the reason is the words which follow. They do not really afford any reason for limiting the words 'the Magistrates'.

13. In my opinion, therefore, all Magistrates are empowered to try cases summarily Under Section 116, Bombay Prohibition Act.

14. Coming next to the question as to whether in such cases a sentence of more than three months can be imposed, it is argued that what Section 262 (2), Criminal P. C., deals with is not a question of procedure. It is true that sentence is a question of substantive law. It is open to argument, however, that what Section 262 (2) deals with is not an alteration of the sentence but the limitation of the sentence in cases tried summarily. In effect the section says that in case it is proposed to give a sentence of more than three months, the ordinary procedure must be followed. In other cases, the summary procedure may be followed. But the draftsman of Section 11(SIC), Bombay. Prohibition Act seems to have dealt With this matter on the footing that inasmuch as Section 262 deals with the question of sentence, it is a question of substantive law and not a question of procedure. It is obvious that inasmuch as the Prohibition Act makes minimum sentence of three months or more obligatory in a number of cases and it could not possibly be the intention that all these cases should be tried by a Sessions Court which would be the only Court empowered to try offences wherein a sentence of more than three months is required, If we were to accept this interpretation of Section 116, we must take it that Section 262 (2), Criminal P. C., was intended to be excluded from the purview of Section 116 on the ground that it deals with the question of sentence, ordinarily a question of substantive law. It would be open, therefore, to a Magistrate trying an offence under the Bombay Prohibition Act under the provisions of Section 116, to impose any sentence which he is empowered to pass and which has been prescribed for the offence.


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