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State of Kerala Vs. E. Bhaskaran Kunhikelu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 284 of 1969
Judge
Reported inAIR1971Ker188; 1971CriLJ955
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 241, 251 and 537
AppellantState of Kerala
RespondentE. Bhaskaran Kunhikelu
Appellant AdvocatePublic Prosecutor
Respondent Advocate K.T. Harindranath and;N.V. Prabhakaran
DispositionAppeal dismissed
Cases ReferredState of Kerala v. Basamma Mary
Excerpt:
- - nevertheless the conviction and sentence were not set aside as the court was not satisfied that any prejudice was caused to the revision-petitioner on account of the magistrate adopting wrong procedure. we are, however, satisfied that no prejudice was caused to him by the magistrate's adopting summons case procedure instead of warrant case procedure. it was held that it was a mere irregularity which did not vitiate the trial and was curable by the provisions of section 537 of the criminal procedure code, if it did not occasion failure of justice. as no failure of justice was caused in that case......procedure prescribed for summons cases is simpler and speedier than that prescribed for warrant cases. warrant cases as they deal with offences graver than those in summons cases cannot be tried in the same simple and speedy fashion as summons cases. greater opportunities for defence are offered to the accused in a warrant case than in a summons case. unlike in a summons case a charge has to be framed in a warrant case and he has also a right to reserve cross-examination of the prosecution witnesses till a last stage. these are substantial and valuable rights which an accused has if the procedure prescribed in chapter xxi is followed and he cannot be deprived of them. the difference between the two forms of trial is not therefore merely one of form importing mere irregularity curable.....
Judgment:

Narayana Pillai, J.

1. This is an appeal from a judgment of acquittal. The allegation in the complaint filed by P. W. 1, the Wireless licensing Inspector, Tellicherry, before the Sub-Magistrate. Tellicherry-I was that the respondent had committed offences punishable under Section 4 read with Section 20 of the Indian Telegraph Act, XIII of 1885 and Section 3 read with Section 6 of the Indian Wireless Telegraphy Act, XVII of 1933. The Sub Magistrate convicted the respondent on both the counts. For the offence under the Telegraph Act he sentenced the respondent to pay a fine of Rs. 100/- and in default to undergo simple imprisonment for one month. No separate sentence was awarded for the offence under the Wireless Telegraphy Act. In the appeal filed by the respondent before the District Magistrate, Tellicherry, his convictions and sentence were set aside. This appeal is from that judgment.

2. Section 20 of the Telegraph Act and Section 6 of the Wireless Telegraphy Act prescribe respectively the penalties for contravening the provisions of Section 4 of the Telegraph Act and Section 3 of the Wireless Telegraphy Act. The punishment prescribed in Section 20 of the Telegraph Act is imprisonment which may extend to three years or fine or both and in Section 6 of the Wireless Telegraphy Act in the case of first offence fine which may extend to Rs. 100/- and in the case of a second or subsequent offence fine which may extend to Rs. 250/-. While the offence under the Telegraph Act is therefore a warrant case that under the Wireless Telegraphy Act is a summons case. The procedure adopted by the Magistrate in the trial of the present case was that in a summons case. Where one of the offences is a warrant case and the other a summons case the trial to be conducted is that in a warrant case. Although the acquittal of the respondent by the District Magistrate was not on that ground the acquittal deserves to be upheld on that ground.

3. The Public Prosecutor submitted that the adoption of the procedure prescribed for summons trial in the present case was merely an irregularity that it had not in any way caused prejudice to the respondent and that therefore the convictions and sentence were not liable to be set aside on that ground and relied upon the Full Bench decision of the Allahabad High Court in Prem Das v. State, AIR 1961 All 590 and the decision of a Single Judge of the Gujarat High Court in Mohanlal v. State, AIR 1962 Guj 231.

4. In AIR 1961 All 590 (FB), the prosecution was under Section 16 of the Prevention of Food Adulteration Act for sale of adulterated food. The case was tried as a summons case although it ought to have been tried as a warrant case. It was held that that was illegal. Nevertheless the conviction and sentence were not set aside as the Court was not satisfied that any prejudice was caused to the revision-petitioner on account of the Magistrate adopting wrong procedure. The following observations of Desai C. J. who delivered the judgment for the Full Bench are relevant:

'An offence punishable under Section 16(1)(ii) must be tried as a warrant case because punishment extending up to two years can be imposed, but the applicant was tried according to the summons case procedure, which was illegal.

We are, however, satisfied that no prejudice was caused to him by the Magistrate's adopting summons case procedure instead of warrant case procedure.'

With great respect I find myself unable to agree with that decision. The Full Bench held that the trial was illegal. If a trial is illegal the whole of it is vitiated and if it ends in conviction such conviction has to be quashed irrespective of the question whether the trial has caused prejudice to the accused or not.

5. In AIR 1962 Guj 231, the charge against the accused was under Sections 323, 504 and 506(2) of the Indian Penal Code. Of them the offences under Sections 504 and 506(2) were triable as warrant case and the other as a summons case. The Magistrate tried the case as a summons case and convicted the first and second accused under Section 323 and acquitted them of the remaining offences. The question was whether the conviction under Section 323 had to be set aside on the ground that the procedure adopted was wrong. It was held that it was a mere irregularity which did not vitiate the trial and was curable by the provisions of Section 537 of the Criminal Procedure Code, if it did not occasion failure of justice. As no failure of justice was caused in that case. Bhagawati, J., as His Lordship then was, who heard the revision petition directed against the conviction and sentence & dismissed it. In His Lordship's order he referred to the decision of the Supreme Court in Gopal Das Sindhi v. State of Assam, 1961-1 SCJ 573 = (AIR 1961 SC 986), wherein the trial as a warrant case of an offence triable as a summons case was held to be only an irregularity which could be cured by the provisions of Section 537 of the Criminal Procedure Code if no prejudice was caused to the accused and said that it was clear from that decision that the adoption of one procedure instead of the other was a mere irregularity which was curable by the provisions of Section 537, Criminal P. C. With great respect the Supreme Court has not said in 1961-1 SCJ 573 = (AIR 1961 SC 986). that if a warrant case is tried as a summons case it is only an irregularity.

6. The procedures prescribed for, warrant and summons cases are entirely different. Chapter XX of the Code of Criminal Procedure lays down the procedure to be followed in summons cases and Chapter XXI the procedure in warrant cases. The procedure prescribed for summons cases is simpler and speedier than that prescribed for warrant cases. Warrant cases as they deal with offences graver than those in summons cases cannot be tried in the same simple and speedy fashion as summons cases. Greater opportunities for defence are offered to the accused in a warrant case than in a summons case. Unlike in a summons case a charge has to be framed in a warrant case and he has also a right to reserve cross-examination of the prosecution witnesses till a last stage. These are substantial and valuable rights which an accused has if the procedure prescribed in Chapter XXI is followed and he cannot be deprived of them. The difference between the two forms of trial is not therefore merely one of form importing mere irregularity curable under Section 537 of the Criminal Procedure Code. On the other hand it is so vital that there is an almost indefeasible presumption of prejudice to the accused if a warrant case is tried as a summons case. In In re Sobhanadri, AIR 1915 Mad 1200, Kumaraswami Sastri, J. said :--

'The next question is whether the accused were prejudiced. This is a difficult one to decide, as it may be that if cross-examination had been allowed as provided for in Section 256, Criminal P. C., facts may have been elicited favourable to them. The privilege conferred by that section is a substantial one, and when denied, it is for the prosecution to show that there was no prejudice.'

Warrant trial is more beneficial to the accused than summons trial. Therefore if a summons case is tried as a warrant case he may not be prejudiced. But if a warrant case is tried as a summons case and the trial ends in conviction such conviction is entered after depriving him of valuable rights and on account of it prima facie he is prejudiced.

7. State of Kerala v. Basamma Mary, 1960 Ker LT 479, is a decision of this Court wherein Govinda Menon. J., held that where a warrant case was tried as a summons case and the accused was acquitted the order of acquittal was not in accordance with law. The two decisions cited by the Public Prosecutor do not persuade me to doubt the correctness of that decision of Govinda Menon, J.

The acquittal deserves to be upheld on the sole ground that the trial adopted was illegal. The appeal herein is dismissed.


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