V.S. Kotwal, J.
1. This matter involves a short but rather of general importance point and in particular, relating to the interpretation of certain provisions of the Code of Criminal Procedure.
2. On 17th November, 1975, the petitioner-accused, a resident of village Shirdhon in Kolhapur District, was apprehended by the Food Inspector Anant Raghoji, Patil at about 12.15 p.m. while he was carrying a can of buffalo milk on way to lchalkaranji for sale. On disclosing the identity the Inspector purchased 660 mili-litre of milk for the purposes of analysis and followed the formalities as imposed by law. The milk was divided in three parts and one sample was alleged to have been given to the petitioner-accused and one sample was thereafter transmitted to the Public Analyst, Pune for analysis. The report of the Public Analyst was received by the Food Inspector on or about 2nd November, 1975 which indicated that only 3.6% milk fat and 4.7% solid not fat were discovered and, therefore, the expert certified that the commodity in question was adulterated. The specimen was also found no contain 47.8% added water. It is also alleged that the copy of the said report was then sent to the accused in due course. The complainant Food Inspector then appraised the superiors and sanction was issued in his favour for launching the prosecution. After having been armed with the valid sanction the Food Inspector filed his complaint on 25th November, 1976 in the Court of the Judicial Magistrate, First Class, Ichalkaranji against the petitioner-accused for having committed an offence under section 16(1)(a)(i) read with section 7(1) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act).
3. The learned Magistrate having been seized of the matter having taken cognizance thereof issued process on the said count on the same day as is evident from an endorsement in the margin of the complaint. Accordingly a summons appears to have been issued to the petitioner-accused which was served in due course and in response thereto the petitioner-accused appeared in the Court. The case that was numbered as Criminal Case No. 296 of 1976 appears to have been adjourned thereafter from time to time without recording any evidence at all. It is on the 5th of January, 1977 that for the first time some progress occurred, in that the petitioner preferred an application Exhibit 5 requesting the learned Magistrate to frame charge at that stage only, on the basis of the documents, if any, and to record his plea to the said charge as he was desirous of pleading guilty, adding further that he admits the contents of the complaint. He annexed a further prayer in the said application that in view of certain circumstances incorporated therein a lenient sentence be imposed. It is not, however, clear from the record as to whether either the Food Inspector or the learned Prosecutor, who has been incharge on behalf of the complainant was either consulted or heard. However, on the very next day, i.e. on 6th January, 1977 the learned Magistrate was pleased to frame a charge against the petitioner for having committed an offence under section 16(1)(a)(i) read with section 7(1) of the Prevention of Food Adulteration Act, and immediately on the very day, the plea was recorded, and as was expected, the petitioner promptly pleaded guilty to the said charge with a qualification that he claimed leniency. Prompt came the ultimate order of the trial Court in that on the very day the learned Magistrate accepting the said plea of guilty convicted the petitioner of the said offence and also upholding his submission in support of his claim for leniency, the petitioner was sentenced to suffer simple imprisonment till rising of the Court and to pay a fine of Rs. 300/- in default of suffer rigorous imprisonment for one month, presumably under section 246(2) of the Criminal Procedure Code (hereinafter referred to as the Code).
4. The matter would have perhaps rested there only, as the petitioner was satisfied and the learned Magistrate got one disposal of a criminal case, but however, the learned Sessions Judge, Kolhapur by his order dated 24th May, 1977 directed the issue of notice to the petitioner as to why the said sentence be not enhanced. This notice was admittedly issued by the learned Sessions Judge suo motu after calling for the record from the trial Court of his own. The petitioner in response to the said notice appeared before the learned Sessions Judge and the proceeding was numbered as Criminal Revision Application No. 96 of 1977. The matter was then heard on merits as well as on the question of quantum of sentence. The learned Sessions Judge held that the petitioner was rightly held guilty of the offence in question and was, therefore, properly convicted. However, as regards the quantum of sentence the learned Sessions Judge was of the opinion that the sentence imposed by the trial Court was thoroughly inadequate and in the interest of justice demanded the deterrent sentence, and, therefore, in that view of the matter he was pleased to enhance the sentence to six months rigorous imprisonment and a fine of Rs. 1000/- in default further rigorous imprisonment for three months. The said order was recorded on 15th October, 1977. It is this impugned order of the Sessions Court that is being challenged before me on behalf of the petitioner.
5. As regards the powers of the learned Sessions Judge to enhance a sentence imposed by the learned Judicial Magistrate, First Class, has not been controverted before me and the said aspect is also concluded by a decision of the Division Bench of this Court. I am, therefore, not addressing myself to that aspect at all.
6. However, Mr. Naik, the learned Counsel for the petitioner stands on a strong footing when he submitted that the procedure adopted by the learned trial Magistrate is wholly illegal and, therefore, the order of conviction itself is unsustainable and as a consequential corollary, order of sentence is also liable to be set aside. In effect his submission is that the learned trial Magistrate was not vested with any power to frame a charge after having issued the process but before recording any evidence whatsoever, and that, therefore, the submission proceeds further, that the plea recorded to such charge has also no existence in law and consequently resultant order passed by the learned trial Magistrate on the basis of the said plea is also unsustainable. It is this point that assumes some importance and which requires consideration of all the aspects pertaining to the same in greater details even in the revisional jurisdiction of this Court.
7. It is common ground that the complaint was filed on 25th of November ,1976 and on the same day process was issued against the petitioner. It is further common ground that the charge was framed on the strength of the application of the petitioner Exh. 5 dated 5-2-1977 even without recording the evidence whatsoever and it is further common ground that accepting the plea the final order of conviction and sentence has been recorded.
8. The procedure applicable to the matter in issue is one which is applicable to the warrant cases which are instituted otherwise than on the police report. Chapter XIX of the Code contains the provisions relating to the trial of warrant cases by Magistrate which are divided into two categories category (4) relating to the cases filed on the basis of police report and category (B) relating to the cases instituted otherwise than on police report. A mere perusal of the relevant provisions contained in both these categories makes it very clear that there is a clear distinction of fundamental character, in the matter of procedure to be adopted by the Magistrate. Thus, section 238 contemplates that the Magistrate must himself satisfy that the accused persons have been furnished with the necessary copies of all the police statements and other documents collected by the Police. Section 239, which is relevant, reads as :
'If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.'
9. Section 240 relates to the framing of the charge while section 239 relates to the discharge of the accused and, therefore, section 240 has also its own relevance. The said section reads as :
'240(1): If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.'
10. Therefore, in a case instituted on the police report the learned Magistrate is enjoined under the Code to not only to look into the police papers but also on the perusal thereof and after hearing both the sides at that juncture only he has to come to a conclusion as to whether the record collected by the police can be said to afford a ground for presuming that the accused has committed an offence triable under that chapter and if so, the charge is to be framed. If on the contrary on the same basis he concludes that the charge against the accused to be groundless then he has to discharge the accused. This position is to be considered in the context of the fact that there is a sort of pre-screening of the material by the police before filing of the charge-sheet. In other words, the police themselves have to first of all collect certain material in the form of statements, panchanama etc., screen the documents and if they opine that it is a matter worth going to the Court of law then the charge-sheet is filed. Therefore, as the entire material on the basis of which the evidence is to be led at the trial is before the Court and, therefore, the Court is not only empowered but also enjoined to look into that material for forming some opinion at that stage. The contract on this aspect in respect of the cases instituted otherwise than on police report comes to the forefront if we peruse the provisions contained in category (B). Section 244(1) read as :
'244(1).---When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate he shall proceed to hear the prosecution and take all such evidence as may be produce in support of the prosecution.'
11. Section 345 thereafter invests powers to the Magistrate to discharge the accused on the premise that no case against the accused has been made out on the basis of the evidence which it rebutted would warrant his conviction. Section 246 which corresponds to section 254 of the Old Criminal Procedure Code is most relevant section so far as present proceeding is concerned and, therefore, it is required to be quoted at this stage. It is as under :
'If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.'
12. Therefore, on reading of the provisions contained in category (B) namely sections 244 to 247, it becomes manifest that a deliberate distinction has been made in the procedure of the two trials as stated above. In other words, in the first instance in a case instituted on the basis otherwise than on a police report except the complaint normally there is no material as such before the learned Magistrate and he does not get an advantage of a pre-screening by the police machinery. The only right vested at that juncture is either to issue process or to refuse issuing of the process on the reading of the complaint. However, after having issued the process, in my opinion, the scheme of the Code clearly indicates that the learned Magistrate has no option, whatsoever but to record the evidence as led by the prosecution and it is only thereafter and certainly not before that stage that the learned magistrate can apply his mind as to whether the accused deserves to be discharged or a prima facie case has been made out for the framing of the charge. The only option given to the learned Magistrate is not to record the entire evidence as sought to be adduced by the prosecution if he is of the opinion that the evidence so for recorded may be enough to frame the charge. It is in this context that the wording of section 246(1) is to be construed and especially phraseology 'or at any stage of case' has got to be interpreted. In other words, the said phraseology is to be read in the context of the provisions contained in section 244 and not in isolation. Thus, what section 246 contemplates is that after the evidence led by the prosecution as envisaged by section 344 is so led then the Magistrate can decide one way or the other and further the Magistrate has a right perhaps to curtail that evidence if he feels at a particular stage that the evidence so for recorded was enough for the purposes of framing of the charge. But the said right is controlled only by this limitation and cannot be equated by saying that the Magistrate can decide to frame charge even before any evidence has been led by the prosecution. In other words, the phrase 'at any previous stage of the case' contained in section 246 has to be read in the context of the provisions of section 244 and in particular the phrase 'take all the said evidence as may be produced in support of the prosecution.'
13. There is another angle from which the matter can be viewed and the conclusions thereby re-enforced. In all the provisions from sections 244 to 247 contained in category (B) significantly the word throughout used is 'evidence'. While in the relevant provisions of section 239 when the matter is being considered by the Magistrate the word 'evidence' has not been used but instead such words as 'police report and documents etc.' have been inserted. This distinction also according to me, is not unintentional. In effect, therefore, in my opinion what is contemplated by the procedure laid down in a case instituted otherwise than on a police report but being tried as warrant case is that once the process has been issued by the Magistrate he has no option whatsoever but to record either all such evidence as is led by the prosecution or atleast some evidence which he deems to be proper and sufficient. But the recording of the evidence cannot thus be short-circuited in any manner and certainly not on the basis of an application by the accused as has been done in the present case. It is too obvious that an illegal procedure cannot be converted into a legal one by the consent given by either side to the proceeding and that the procedure envisaged by the Code, which is mandatory, cannot be departed from on the basis of such an application on the part of the accused.
14. The reference to some other provisions will be somewhat useful. The procedure for summons trial has been laid down in Chapter XX containing the provisions of sections 251 to 259. In that the first thing that has to be done by the Magistrate is that the particulars of the offence are explained to the accused and he is to be asked whether the pleads guilty or has any defence to make, though it is not necessary to record formal charge, as has now been introduced by the amendment in the new Code, whereas before the said amendment, the accused, after having been explained the particulars of the offence, was to be asked if he has any cause to show why he shall not be convicted. It is, thereafter that on the basis of the plea that the trial Magistrate has to proceed further. Therefore, a deliberate distinction has also been made as regards the stage of recording plea and the manner thereof in a summons trial as well as in a warrant case, though in common parlance what has always been said that in summons case only the particulars of the offence are to be read over to the accused. Session 254 then contemplates that if the accused claims to be tried then the evidence for the prosecution is allowed to be led and then the consequences in accordance with the law to follow. The procedure for the sessions trial is envisaged by Chapter XVIII section 227 is to some extent at least on the same lines as section 235, which contemplates that the accused can be discharged if there are no sufficient grounds for proceedings as to be concluded on the basis of the record of the case and the documents submitted therewith. Significant it is to note that in this provision also word 'evidence' has not been utilised. Section 230 awards contemplates the recording of the evidence as such when the accused pleads not guilt to the charge. Section 200 of the Code relates to the complaints to the Magistrate. Chapter XXIII relates to the recording of the evidence in enquires and trials.
15. I am, therefore, clear in my opinion that looking to the scheme of the Act and the arrangement of sections in various chapters and deliberates distinction having been made in the phraseology used as also separate procedure having been prescribed in different types of trials, it is manifest that the procedure adopted by the learned Magistrate was thoroughly unwarranted by any provisions of law. It may be that under the new Code by special provisions some aspects are dispensed with, such as, for instance, the evidence of a formal character can be tendered in the form of an affidavit, while no formal proof of some documents is required to be adduced by the prosecution, but the Code stops at that and does not give a sort of blanket authority for a Magistrate to depart from or dispense with the prescribed procedure even though the concerned party has given consent.
16. I may with advantage rely on the observations in Abdul Nabi v. Gulam Murthuza Khan : AIR1968AP93 , which fully supports my view. The said judgment also deals with the scheme of the Code and in particular the relevant provisions relating to warrant trials which are commenced not on the basis of police report. It is true that the provisions of the old Criminal Procedure Code are referred to in the said judgment but so far as the point involved in this position is concerned the amendment to the Code makes no difference because substantially there is no change so far as this aspect is concerned. Therefore, the observations in the said judgment and especially contained in paragraphs 7 and 8 fully apply to the facts of the present case. In effect it has been observed that under section 200 of the Code a Magistrate taking cognizance of an offence of complaint has at once to examine the complainant and witnesses on oath or if he so desirous he may send the complaint for enquiry at the hands of the police and that under section 203 he has power to dismiss the complaint after considering the statement on oath and report of the investigation or inquiry by the police. He can issue summons under section 204 holding that there is sufficient ground for proceeding. The judgment thereafter says that once the stage of dismissal of the complaint has passed then the second landing is only under section 253(2) of the Code of Criminal Procedure (Old) and there is no stage at which the complaint can be dismissed. The phraseology 'at any previous stage' has also been considered there and with reference to that it has been observed that the said phraseology has to be understood in the light of sub-section (1) in which reference to section 252 is made and sub-section (1) expressly refers to the duty of the Magistrate to take all the evidence referred to in section 252 and it in juxtaposition of the duties that section 252 empowers the Magistrate to discharge the accused at any stage of the case and, therefore, it can only mean that after the stage of section 203 is passed but some evidence is recorded under section 252 and before all the evidence referred to in that section is recorded the Magistrate can discharge the accused. It is true, that the case due with the matter where the accused was discharged, but the consideration applies with equal force to a case where the charge is to be framed, because the crucial point which is common to both these cases is as to whether the Magistrate having once taken cognizance and issued process has an authority not to record any evidence for the purpose of either discharging the accused or for framing of the charge. I am also aware that the complaint in the instant case is filed by the public servant and not a private party. However, that will not make any substantial difference in so far as relating to the stage after the issuance of process inasmuch as in both cases some evidence must be recorded.
17. I may, however, hasten to add that it can be argued with some degree of force that in the case of discharge, a position may be envisaged where the accused could claim discharge without taking evidence on record when, after issuance of process, accused appears before the Court and raises a bar to the jurisdiction of the Court to try the offence on the ground of want of sanction or other allied grounds, which would go to the root of the jurisdiction of the Court. But if there is no such hurdle, the Court must record evidence on the basis of which it may frame charge or may even discharge the accused. In the instant case, however, I am more concerned with the point of framing of charge and I am, therefore, not called upon to examine in detail the considerations which might apply to the point of discharge or to express any opinion. Suffice it to say that atleast in so far so the framing of charge, there is no escape from the position that some evidence must be recorded.
18. There is one more aspect about this point. This Court has to frame charge if it is of opinion that there is ground for presuming that the accused has committed an offence and this opinion has to be based on some evidence placed before the Court making out a prima facie for charge. The document of complaint by itself is not substantive evidence and it can be brought on record only by examining the complainant. In this case, therefore, there was no evidence before the Court on the basis of which charge could be framed.
19. In this view of the matter the order of conviction and sentence cannot be sustained at all. It is not out of place to observe that it is not as if that the courts below were not aware as to how and at what stage the plea of guilty came to be recorded inasmuch as in the judgment of the trial Court it is mentioned that the accused appeared before the Court and filed an application Exhibition 5 expressing his intention to plead guilty and he had no objection if the charge was framed on the basis of the record as it stood and consequently charge at Exhibition 6 was framed and plea was recorded. It is, therefore, unfortunate when the learned Magistrate having been fully aware of this position did fall into the said illegality. There is also reference of this fact in the judgment of the learned Sessions Judge in para 1 indicating thereby that the learned Sessions Judge was also aware of this situation and the equally unfortunate part is that the Appellate Court also did not apply its mind to this aspect, even though comparatively a detailed judgment has been recorded discussing the evidence and the effect of the breach of certain Rules framed under the Prevention of Food Adulteration Act etc. I am constrained to observe that an undue haste has been committed in this proceeding by the courts below. One is not certain as to whether the learned Magistrate or the accused was in hurry to get the matter disposed of. The learned Sessions Judge appears to have concentrated more on the question about his power to enhance the sentence and ultimate question about the adequacy or otherwise of the sentence imposed by the trial Court. It may be that the said point was not expressly canvassed before the courts below, but as I have indicated the record justifies a probability that both the courts below by themselves could have been aware of that situation and should have on their own addressed themselves to this aspect. This process of non-application of mind to this vital issue has created difficulties, inasmuch as the incident is alleged to have occurred in November 1975, the complaint was filed in February 1976 the case was decided in the trial Court in January 1977 and the Sessions Court disposed of the matter in October 1977 and this petition has come to be decided in August 1978.
20. The learned Counsel for the petitioner-accused, Mr. Naik, submitted before me that this Court should acquit his client once the procedure has been held to be illegal and the order of conviction and sentence unsustainable. I am afraid such a course is not open to this Court, the illegality of the procedure which entails into setting aside the order of conviction and sentence cannot be confused with the petitioner being exonerated on the merits of the case. Shri Naik, the learned Counsel endeavoured to submit that on merits his client has an arguable case as there being violation of mandatory provisions of Act as well as the Rules framed there under, such, for example, Rules 9(j), 17, 18 etc. It was also sought to be argued that the learned Magistrate was not justified in issuing process and at this stage atleast acquittal should be recorded in favour of his client in view of the recitals in the complaint itself. What the learned Counsel wants to argue is that the sample is alleged to have been taken on 17th November, 1975 whereas, as per the complaint, the sample which purports to be the subject matter of this proceedings was actually transmitted to the Public Analyst on 2nd November, 1977 and says Mr. Naik the learned Counsel, that the discrepancy is so apparent that it may result into the prosecution being untenable. Shri Barday, the learned Additional Public Prosecutor submitted that it is an obvious mistake creeped in the complaint as he is in a position to dispel the doubt on the basis of other documents. I cannot persuade myself to this view as also the other contention raised by the learned Counsel for the petitioner and pressed into service for claiming an acquittal for the simple reason that all these features would become relevant and would be considered only after the proper evidence is led by the prosecution and not till then. It is thus necessary that opportunity should be given to the prosecution to whatsoever evidence they want to lead and especially that of the Food Inspector himself and unless that has been done the entire case cannot be thrown overboard. It will be open for the defence to agitate all these points when certain evidence is led by the prosecution.
21. In view of this position I have no hesitate to send the case back for retrial. I must make it very clear that I have not expressed any opinion on the merits of the case and the entire filed is now open and defence can controvert and challenge the complainant's evidence in any manner as they like including the validity of the sanction, violation of the various Rules etc. In view of the fact that there has been enormous delay for which the entire blame cannot be placed at the doors of the defence it is in the fitness of things necessary that no remind the case should be heard and disposed of expeditiously, though not in the manner as has been done earlier.
22. In the result, the rule is made absolute. The order of conviction recorded by the trial Magistrate and confirmed in Criminal Revision by the learned Sessions Judge, Kolhapur as also the sentence imposed by the learned Sessions Judge is set-aside and the case is sent back to the file of the Judicial Magistrate, First class, Ichalkaranji for a fresh trial in accordance with law in the light of the observations made aforesaid.
23. The bail bond stands cancelled.
24. The petitioner-accused to appear before the learned Magistrate on 18th September, 1978. The record and proceeding be sent back immediately.