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State of Madhya Pradesh Vs. Shantilal Dayashanker - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1962CriLJ817
AppellantState of Madhya Pradesh
RespondentShantilal Dayashanker
Cases ReferredIn Jagmal Raja v. The Crown
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. .....make him liable to any punishment under sees. 6 and 15 of the act. on this reasoning the learned trial magistrate acquitted shantilal directing that the case shall proceed only as against bhagwan-das.3. the sole question that arises for determination in this case is whether it was open to the magistrate to pass an order under section 245 cr.p.c. acquitting shantilal on a perusal of the police papers without taking any evidence. the answer to the question admits of no doubt and the order of the trial magistrate acquitting the respondent shantila] is patently illegal and indefensible. shri rajendrasingh, learned counsel appealing for the respondent, rightly made no attempt to support the view of the trial magistrate that under section 245 c.p.c. he could acquit the accused without.....
Judgment:

P.V. Dixit, C.J.

This is an appeal by special leave under Section 417(3) of the Criminal Procedure Code from an order of Shri S.R. Sharma, Additional District Magistrate, Raipur, acquitting the respondent of charges under Sections 6(1) and 15 of the Central Provinces and Berar Prohibition Act, 1988.

2. The circumstances in which the order of acquittal was passed are these. On 9th July I960 a challan in respect of offences under Sections 6(1) and 15 of the Act was presented in the Court of the Additional District Magistrate, Raipur, against the respondent and one Bhagwandas. The accused persons were present in the Court on this date. Thereafter the hearing of the case was adjourned from time to time. On 14th November 1960 the Magistrate examined the accused persons and posted the case for hearing on 15th November 1960. On this date also it was adjourned to the next day, that is, 16th November 1960. On 16th November, an objection was raised on behalf of the respondent Shantilal that he was merely a servant of Bhagwandas and not the manager or proprietor of the Usha Products, Raipur, and that the 190 gallons of rectified spirit and 35 gallons of denatured spirit which. was seized on 24th and 25th April 1960 from him could not be regarded as seized from his possession so as to make him punishable under Section 6(1) or Section 15.

On this objection being raised learned Counsel appearing for the prosecution urged that as the case was tried as a summons case the en-tire procedure laid down in chapter XX of the Criminal Procedure Code had to be followed and that the accused could not be acquitted at that stage on the ground that the police papers did not disclose any offence against him, and the objection raised on behalf of the accused could be considered only after the evidence had been recorded. The learned Magistrate overruled the objection raised by the prosecution taking the view that it was competent for him to acquit the accused without following the entire procedure laid down in Chapter XX if the police papers disposed that prima facie the accused had not committed any offence. The Magistrate stated his view thus:

A perusal of Section 242 Cr.P.C. will, show that when the accused appears or is brought before a Magistrate, the particulars of the offence of which he is the accused have to be stated to him. This means that there should, be some ground with the Magistrate, to state the particulars of the offence. If the Magistrate finds that there is no offence, committed prima facie by the accused, as shown from the police papers or evidence whichever may be before the court there is no question, of stating the particulars of the offence. I feel it will be not correct to try an accused when there is no offence prima facie shown to have been committed by him. The law of Natural Justice will also bear this out.

He then proceeded to consider the question whether the respondent Shantilal was the Manager of itlie Us ha Products or merely a servant, and finding that he was only a Munim came to the conclusion that on the language of Section 27 of the Indian Penal Code Shantilal's possession of the liquor could not be -regarded as possession on his own account so as to make him liable to any punishment under Sees. 6 and 15 of the Act. On this reasoning the learned trial Magistrate acquitted Shantilal directing that the case shall proceed only as against Bhagwan-das.

3. The sole question that arises for determination in this case is whether it was open to the Magistrate to pass an order under Section 245 Cr.P.C. acquitting Shantilal on a perusal of the police papers without taking any evidence. The answer to the question admits of no doubt and the order of the trial Magistrate acquitting the respondent Shantila] is patently illegal and indefensible. Shri Rajendrasingh, learned Counsel appealing for the respondent, rightly made no attempt to support the view of the trial Magistrate that under Section 245 C.P.C. he could acquit the accused without recording any evidence. He, however, contended that the order of the trial Magistrate could be sustained under Section 249 Cr.P.C. which gave him the power to stop the proceedings at any stage without pronouncing any judgment either of acquittal or of conviction. It was said that the 'se of the word 'acquittal' by the learned Magistrate was inaccurate and that the real effect of his order was that the proceedings against Shantilal wore stopped.

4. Before dealing with the contention advanced by the learned Counsel appearing for the respondent, it is necessary to state for the guidance of the trial Magistrate, who acquitted the respondent, that the course adopted by him is not warranted at all by any provision contained in the Code of the Criminal procedure. The procedure for the trial of summons cases has been laid down in Chapter XX. Under Section 242 Cr.P.C., when the accused appears or is brought before the Magistrate the particulars of the offence said to have been committed by him are required to be stated to him and he has to be asked if he has any cause to show that he should not be convicted. Under Section 243 if the accused admits having committed th0 offence, his admission has to be recorded. The Magistrate may convict on this plea of guilty. If he does not convict the accused on admission if the truth of accusation, then the Magistrate has to follow the procedure prescribed in Section 244 and hear the complainant and take all such evidence as may be produced in support of the prosecution, and has also to hear the accused and take all such evidence as he produces in his defence. It is only after this procedure is followed and the evidence is recorded that 'die Magistrate can under Section 245 acquit the accused if he finds him not guilty. If, on the other hand, he finds the accused guilty then the Magistrate has to pass a sentence upon him according to law. The opening words of Section 245 themselves show that an order under that section can be made only after 'taking the evidence referred to in Section 244 and such further evidence (if any)' as he, that is the Magistrate, of his own motion;, may cause to be produced. The directions contained in Sections 244 and 245 are mandatory and without complying with them the Magistrate has no jurisdiction to pass an order under Section 245 acquitting the accused. This was not a case in which there was any non-appearance of the complainant permitting the Magistrate to acquit the accused under Section 247 Cr.P.C. Here both the complainant and the accused were present on the date of hearing and when the accused raised the objection that the police papers did not disclose any offence against him, the Magistrate perused them and formed his own opinion on the merits of the matter. He refused to follow the procedure prescribed by Sections 242 to 244. The matter is plain enough and no authority is required to point out that the procedure followed by the trial Magistrate in acquitting, the respondent Shantilal was altogether illegal. But we may for the benefit of the learned Magistrate refer to Emperor v Varadnrajulu AIR 1932 Mad. 25(2), Kadutha v. Kesaven AIR 1954 Tra-Co. 439, and Radhanath v. Kishorilal AIR 1954 Cal. 194. It is really surprising that the trial Magistrate, who is a First Class Magistrate of long standing, fell into the error that he did. The Order of acquittal passed by him only shows that he has as yet to learn the elements of criminal law.

5. In regard to the contention of the learned Counsel for the respondent that the order of acquittal could be sustained with reference to Section 249 Cr.P.C., it is sufficient to say that the trial Magistrate could have stopped the proceedings under that provision; but he did not do so. On the other hand, he focussed his attention pointedly on the question whether it was necessary for him to follow the procedure laid down in Sections 242 to 244 Cr.P.C. before acquitting the accused when according to him the police papers did not prima facie disclose any offence committed by the accused. That apart, the fact that the police papers do not disclose any offence committed by the accused or that the evidence that may be produced is not likely to advance the prosecution case any further can hardly be made as a valid ground for stopping the proceedings under Section 249 without pronouncing any judgment either of acquittal or of conviction. In such a case the proper course would be to proceed with the ease and to record a finding of acquittal after taking the evidence. In Jagmal Raja v. The Crown AIR 1950 E.P. 83 a doubt has been expressed whether Section 249 is intended to be applied in cases where there are no special or unusual circumstances making it difficult or impossible or even highly undesirable to proceed with the case, and it has been observed that-

In the ordinary course, only minor offences arc intended to be tried under the procedure contained in Chap. XX, and in such eases the ordinary practice is to record the evidence of both parties on the same day. Thus as a rule there can be very feiw cases in which there is any difficulty or undesirability about proceeding with the case to the end and recording a finding of conviction or acquittal.

In, our opinion, the order of acquittal passed by the Magistrate cannot be regarded as any order made under Section 249 Cr.P.C. or sustained with reference to that provision. In this view of the matter, it is unnecessary t0 deal with the argument of the learned Counsel for the respondent on the contents of the police papers or on the status of the respondent Shantilal.

6. For these reasons, this appeal is allowed, the order dated 24th November 1960 of the Additional District Magistrate Raipur, acquitting Shantilal is set aside, and the trial Magistrate is directed to proceed with the trial of Shantilal in accordance with law. A copy of this, order be sent to Shri S.R. Sharma, First Class Magistrate, wherever he may be.


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