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Manbodh Biswal and ors. Vs. Samaru Pradhan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in50(1980)CLT142; 1980CriLJ1023
AppellantManbodh Biswal and ors.
RespondentSamaru Pradhan
Cases Referred and P. Mukherji v. State
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........cri lj 1418 in support of this view. on the other hand the patna high court in a division bench decision reported in rajeshwar prasad singh v. province of bihar air 1949 pat 323 : 50 cri lj 676 discussed this question fully and overruled the previous single judge decisions on the subject and held that such an omission to comply with the provisions of section 242, cr.p.c. would be a mere irregularity which, in the absence of prejudice, would be cured by section 532, cr.p.c. (sic). the previous case law on the subject has been fully discussed in that judgment and with respect i am inclined to agree with that view. in nayan ram v. prasanna kumar air 1953 assam 161 : 1953 cri lj 1574; ahmed v. state air 1955 hyd 174 : 1955 cri lj 1066; abdul kadir v. gafur sheikh air 1956 assam 127 : 1956.....
Judgment:
ORDER

R.N. Misra, J.

1. Petitioners, four in number, were convicted under Sections 323 and 504, I.P.C. and each of them was sentenced to pay a fine of Rs. 70/- on the first count and Rs. 40/- under the second count with default sentence of imprisonment therefor by a Magistrate First Class at Sambalpur. Their appeal having been dismissed by the learned Additional Sessions Judge, this revision application has been filed challenging the convictions.

2. Several contentions have been raised in the revision petition which seem to be essentially factual. I have not been impressed by these contentions and I do not think it appropriate to interfere with the conviction on those grounds.

3. One contention which has a legal colour may, however, be examined. Admittedly the case was triable by summons procedure. Reliance is placed on Section 251 of the Cr.P.C. 1973, which provides:

When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.

It is contended that the provision of Section 251 of the Code is mandatory and since the accusation had never been stated by the learned Magistrate to the accused persons, the trial and consequent conviction cannot be sustained in law. The provision of Section 251 of the Code corresponds to Section 242 of the old Code of 1898 in its essential features. Dealing with Section 242 of the Code, Narasimham, C. J., in the case of Bidyadhar Tunga Samantra v. Daitari Rana : AIR1959Ori121 held:

4. Undoubtedly, there is sharp conflict of judicial opinion as to whether non-compliance with the provisions of Section 242, Cr.P.C. during the trial of a summons case is illegal or whether it is only an irregularity, which in the absence of prejudice, would not justify the setting aside of the conviction and sentence. The leading decision in favour of the former view is : AIR1950Cal61 on which the learned lower appellate court has relied. There are also two decisions of the Mysore High Court reported in Ramamurthy v. State of Mysore AIR 1954 Mys 164 : 1954 Cri LJ 1622 and Gangappa v. State of Mysore AIR 1956 Mys 63 : 1956 Cri LJ 1418 in support of this view. On the other hand the Patna High Court in a Division Bench decision reported in Rajeshwar Prasad Singh v. Province of Bihar AIR 1949 Pat 323 : 50 Cri LJ 676 discussed this question fully and overruled the previous single Judge decisions on the subject and held that such an omission to comply with the provisions of Section 242, Cr.P.C. would be a mere irregularity which, in the absence of prejudice, would be cured by Section 532, Cr.P.C. (sic). The previous case law on the subject has been fully discussed in that judgment and with respect I am inclined to agree with that view. In Nayan Ram v. Prasanna Kumar AIR 1953 Assam 161 : 1953 Cri LJ 1574; Ahmed v. State AIR 1955 Hyd 174 : 1955 Cri LJ 1066; Abdul Kadir v. Gafur Sheikh AIR 1956 Assam 127 : 1956 Cri LJ 974, State of Rajasthan v. Bhanwarlal AIR 1957 Raj 296 : 1957 Cri LJ 994 and P. Mukherji v. State 1957 Cri LJ 86 (Pat) a similar view was taken.

There is no reported decision of this Court on the question though in an unreported decision of this Court in Criminal Revn. No. 313 of 1949 the then Chief Justice (Ray C.J.) thought that such an omission was an incurable illegality. But the case law on the subject was not fully discussed in that case and with great respect I am inclined to prefer the Division Bench decision reported in AIR 1949 Pat 323 : 50 Cri LJ 676.

In my opinion, therefore, the learned lower Court should not have set aside the conviction and sentence without further examining the question as to whether non-compliance with the provisions of Section 242, Cr.P.C. has, in fact, resulted in prejudice. The parties were represented by lawyers and there was full cross-examination of the prosecution witnesses and also examination of the defence witnesses.' The present fact are similar. There has been cross-examination of prosecution witnesses at length by counsel for the petitioners and defence has also led evidence. There is no apparent prejudice. In fact, when asked to indicate any prejudice, counsel for the petitioners was not able to indicate any. I am not prepared to take a view different from the opinion indicated by the learned Chief Justice in the reported decision. It would, therefore, follow that in the absence of prejudice, petitioners are not entitled to contend that the trial was vitiated for noncompliance with Section 251 of the Cr.P.C. 1973.

4. The revision application fails and is dismissed.


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