1. This appeal is brought by certificate granted under Art. 134(1)(c) ofthe Constitution from a judgment of the Madras High Court dated April 29, 1963in Criminal Appeal No. 251 of 1963 affirming the conviction of theappellant-Sri Mahant Kaushalya Das under s. 4(1) (a) of the Madras ProhibitionAct and the sentence of one year Rigorous Imprisonment and a fine of Rs. 50 orin default rigorous imprisonment for one month.
2. The appellant is the hereditary Mahant of Sri Bairaghi Matam --a HinduReligious and Charitable Institution of a monastic nature. The appellant hasbeen residing in the Matam premises, Elephant Gate, Madras which is a publicplace of worship. On March 22, 1963 at about 10 a.m. the appellant was arrestedby the police and immediately produced before the VIII Presidency Magistrate onthe same day on a charge under s. 4(l)(a) of the Madras Prohibition Act on theallegation that he was in possession of 3,960 grams of Ganja concealed in awooden box m the Matam premises without any permit. The appellant pleadedguilty to the charge and upon that plea he was convicted by the Magistrate torigorous imprisonment for one year and a fine Rs. 50, in default to rigorousimprisonment for one month. The appellant preferred Criminal Appeal No. 251 of1963 to the High Court alleging that his eye-sight was very bad and defective,that he was an illiterate person, not acquainted with English or Tamil or withany other South Indian language and that he only knew Hindi as it was spoken inUttar Pradesh. He also complained that he had no time to consult either hislawyer or his disciples, that the proceedings were rushed through with unduehaste, that he did not really plead guilty to the charge and that he neverunderstood the implications of the offence or the proceedings before theMagistrate. The appellant filed an affidavit in support of the appeal beforethe High Court in regard to these allegations. Kailasam, J. called for a reportfrom the Vin Presidency Magistrate with regard to the allegations made in theaffidavit of the appellant. On April 23, 1963 the Magistrate submitted a reportas follows:
'The particulars of the offence were explained tothe accused by the Interpreter. It was translated to accused in Hindi by Sri M.Sukumara Rao, Bench Clerk of this Court who has passed examination in Hindi.The plea of guilty by the accused was also interpreted to the Court by Sri M.Sukumara Rao. The allegations contained in the affidavit are false.'
3. Thereafter Kailasam, J. confirmed the conviction and sentence anddismissed the appeal.
4. Learned Counsel on behalf of the appellant put forward the argument thatthe Magistrate did not comply with the mandatory provisions of s. 243. CriminalProcedure Code, that the appellant has been deprived of the substance of a fairtrial, and that the conviction of the appellant is legally invalid. It was alsosubmitted on behalf of the appellant that the necessary ingredients of theoffence of possession of the contraband article under s. 4(1) (a) of the MadrasProhibition Act have not been established as a matter of law.
5. It is necessary to reproduce, at this stage, the charge framed by theVIII Presidency Magistrate against the appellant as well as the judgmentpronounced in the case. The charge reads as follows :
'On 22nd March 1963 at about 8 a.m. at No. 1General Muthiah Mudali street in C-2 limits, the accused was found inpossession of 3,960 grams of Ganja concealed in wooden box in his Matampremises without any permit. Hence the charge.'
5. The judgment by the Magistrate reads as follows :
'Judgment, dated 22nd March 1964 :- Accusedproduced. Pleads guilty. Found guilty. The quantity is very huge viz., 3,960grams concealed in a wooden box. I convict and sentence him to rigorousimprisonment for one year and to pay a fine of Rs. 50 in default to rigorousimprisonment for one month. Confiscate property.'
6. Section 4 of the Madras Prohibition Act, 1937 (Madras Act 10 of 1937) asamended by Madras Act 8 of 1958 states :
'4. (1) Whoever-
(a) imports, exports,transports or possesses liquor or any intoxicating drug; ***** shall bepunished-******
(ii) in any other case withimprisonment for a term with may extend to one year and with fine which mayextend to two thousand rupees, but in the absence of special and adequatereasons to the contrary to be mentioned in the judgment of the Court, suchimprisonment shall not be less than three months and such fine shall not beless than five hundred rupees, in the case of the offence of import, export ortransport of liquor or any intoxicating drug falling under clause (a) :*******
(2) It shall be presumed untilthe contrary is shown-
(a) that a person accused ofany offence under clauses (a) to (j) of sub- section (1) has committed suchoffence in respect of any liquor or any intoxicating drug or any still,utensil, implement or apparatus whatsoever for the tapping to toddy or the manufactureof liquor or any intoxicating drug or any such materials as are ordinarily usedin the tapping of toddy or the manufacture of liquor or any intoxicating drugor any materials which have undergone any process towards the manufacture ofliquor or any intoxicating drug or from which any liquor or intoxicating drughas been manufactured, for the possession which he is unable to accountsatisfactorily, and **********
7. It cannot be disputed in the present case that there has been a violationby the magistrate of the requirements of s. 243 of the Criminal Procedure Codewhich states :
'243. If the accused admits that he has committedthe offence of which he is accused, his admission shall be recorded as nearlyas possible in the words used by him; and, if he shows no sufficient cause whyhe should not be convicted, the Magistrate may convict him accordingly.'
8. It is stated by the Magistrate in his report that the particulars of theoffence were explained to the appellant by the Bench Clerk Sri M. Sukumara Raoand that the plea of guilty by die appellant was interpreted to the Court bythe same Bench Clerk. It is manifest from the record that the admission of theappellant has not been recorded 'as nearly as possible in the words usedby him', as required by s- 243 of the Criminal Procedure Code. It is truethat in the judgment dated March 22, 1963 the Magistrate has said that theappellant 'pleads guilty', but the record contains no indicationwhatsoever as to what exactly the appellant admitted before the Magistrate- Inour opinion, the requirements of s. 243 of the Criminal Procedure Code aremandatory in character and a violation of these provisions vitiates the trialand renders the conviction legally invalid. The requirement of the section isnot a mere empty formality but is a matter of substance intended to secureproper administration of justice. It is important that the terms of the sectionare strictly complied with because the right of appeal of the accused dependsupon the circumstance whether he pleaded guilty or not and it is for thisreason that the legislature requires that the exact words used by the accusedin his plea of guilty should, as nearly as possible, be recorded in his ownlanguage in order to prevent any mistake or misapprehension. It has been heldby the Madras High Court in Queen-Empress v. ErugadnI.L.R. 15 Mad 83 that theviolation of the procedure in s. 243 of the Criminal Procedure Code wassufficiently serious to invalidate the conviction of the accused. The same viewhas been taken by the Calcutta High Court in Shailabala Dasee v. Emperor I.L.R. 62 Cal. 1127 and by the Allahabad High Court in Mukandi La! v. State : AIR1952All212 . In our opinion, Ihese cases correctly lay down the law onthe point.
9. It is submitted on behalf of the respondent that under s. 362(2)(A),Criminal Procedure Code it was sufficient if the Magistrate made a memorandumof the substance of the examination of the accused and that it was notnecessary to record the actual words used by the accused. In our opinion, s.362(2)(A) of the Criminal Procedure Code has no application in a case wherethe accused pleads guilty and the special provision of s. 243 of the CriminalProcedure Code would be attracted in such a case. Section 243 of the CriminalProcedure Code is a provision of a special character and according towell-established rule of interpretation that special provision will takeprecedence and override the general provision of s. 362(2)(A) of the CriminalProcedure Code. We, therefore, reject the argument of Counsel for therespondent on this point.
10. For these reasons we allow this appeal, set aside the conviction andsentence imposed upon the appellant and order that the case should go back tothe VIII Presidency Magistrate, Madras for being retried and brought to aconclusion in accordance with law.
11. Appeal allowed.