(1) This is an application in revision by the accused, who has been convicted under clauses (b) (c) and (f) of section 65 and clause (b) of section 66 of the Bombay Prohibition Act. The offences under section 65 of the Act, are punishable with imprisonment for a term which may extend to three years. The case was, therefore, a warrant case and not a summons case. Section 116 of the Bombay Prohibition Act, provides that in all trials for offences under this Act, the Magistrate shall follow the procedure prescribed in the Code of Criminal Procedure for the trial of summary cases in which an appeal lies. Sub-section (1) of section 262 , Criminal Procedure Code, provides that in summary trials 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 mentioned in the following sections in Chapter XXII. The trial Magistrates should, therefore, have followed the procedure prescribed for warrant cases. He, however, tried the case as a summons case. It has, therefore, been urged on behalf os the accused that th trial was vitiated by the Magistrate's following a wrong procedure and that consequently the conviction of the accused is illegal. On the other hand, it has been urged on behalf of the State that the irregularly is one, which is curable under section 537, Criminal Procedures Code, unless it is shown that prejudice has been caused to the accused.
(2) We have been referred to several decisions on this point, but we do not think that it is necessary to refer to most of them. The law on the subject has been summed up by the Privy Council in Pulukuri Kotayya v. Emperor, 74 Ind App 65: AIR 1947 PC 67 in these words;
'When a trial is conducted in a manner different form that prescribed by the Code as in Subramania Iyer V. King emperor, 28 Ind App 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 can be cured under section 53 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.'
These observations have been quoted with approval by the Supreme Court in Narayan Rao v. State of Andhra Pradesh, : 1957CriLJ1320 and Chhadami Lal Jain V. State of Uttar pradesh, : 1960CriLJ145 and in Supreme Court, Payare Lal V. State of Punjab : (1962)ILLJ637SC . The Criminal Procedure Code classifies in the offences triable by a Magistrate into two broad categories; summons cases and warrant cases. Chapter XX contains provisions laying down the procedure to be observed in the trial of summons cases. Chapter XXI lays down the procedure prescribed of the trial of warrant cases. The Code therefore prescribed two different procedures for he trial of the two classes of cases. The differences between the two procedures have been considerably reduced after the amendment of the Code by the Code of Criminal Procedure (Amendment) Act (26 of 1955). But there are still substantial differences between the two procedures. Consequently, where a warrant case is tried according to the procedure prescribed for summons cases, it would be difficult to hold that the trial is conducted in the manner prescribed by the code. The case would fall within the first category mentioned in the above passage from the judgment of the Privy Council in Pulukuri Dotayya's case, 74 Ind App 65; AIR 1947 PC 67. The trial would therefore be bad. It is necessary to add that were the Magistrate follows substantially the provisions laid down in Chapter XXI, in regard to the trial of warrant cases but commits some irregularity in following those provisions, the irregularity would be curable under section 537, unless prejudice is shown to have been caused to the accused.
(3) The failure of the trial Magistrate in this case to follow the procedure prescribed for warrant cases therefore, vitiates the trial. The conviction of and the sentence passed upon the accused are, therefore, set aside and the case will be sent back to the trial Court for retrial of the accused. Under sub-sections (2) and (3) of section 251-A, Criminal Procedure Code, in the trial of a warrant case, the Magistrate has first to examine the accused and after giving the prosecution and the accused an opportunity of being heard he has to frame a charge against the accused, unless he comes to the conclusion that the charge is groundless. The irregularity in this case, therefore, occurred when the Magistrate failed to frame a charge and proceeded to record the evidence without framing a charge. The retrial of the accused should commence from the stage at which the irregularity occurred. The examination of the accused already made should be deemed to have ben made under sub-section (2) of section 251-A. The Magistrate should proceed further from this stage and after hearing the prosecution and the accused decide on the basis of the evidence already recorded and the examination of the accused already made, for what offences a charge should be framed. He should then frame a charge and thereafter proceed the to try the accused in accordance with the procedure to try the accused in accordance with the procedure prescribed in sections 262 and 264. The accused to continue on bail for a fortnight. In the meantime he should apply to the trial Court for bail.
(4) The trouble and expense involved in the retrial of the accused and the time of the court, which is likely to be taken in trying he case again, would have been saved, if greater care had been exercised at the commencement of the proceedings. It is also the duty of both the Police Prosecutor and the defence advocate to bring such defects to the notice of the Court at a very early stage of the trial.
(5) Order accordingly.