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State of Kerala Vs. Raman Nair - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Ref Nos. 2 of 37 of 1961
Judge
Reported inAIR1962Ker78
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 242; Essential Services Maintenance Ordinance, 1960 - Sections 1 and 4; General Clauses Act - Sections 6
AppellantState of Kerala
RespondentRaman Nair
Appellant AdvocatePublic Prosecutor
Respondent Advocate T.C.N. Menon and; N. Gangadhara Menon, Advs.
Cases ReferredWicks v. Director of Public Prosecutions
Excerpt:
.....clauses act, which corresponds to section 27 of the punjab act the provisions of the act are applicable to ordinance as well. this argument no doubt is well founded. we would like to add, that in the present case, we are not called upon to consider whether offences created by a temporary statute cease to be punishable on its expiration. 19. it has also been brought to my noticethat the accused has already undergone the sentence of imprisonment for failure to pay thefine imposed and in the case where retrial wasordered by this court in crl......v. the state of madras, air 1951 sc 301 where it is stated: 'the general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires (craies on statutes, edn. 4 p. 347). preventive detention which would but for the act authorising it, he a continuing wrong, cannot therefore be continued beyond the expiry of the act itself.14. the ordinance is a temporary enactment. it expires by efflux of time. it is not like a statute which ceases to be operative by a repeal. the consequence is that section 6 of the general clauses actdoes not apply to a temporary statute or ordinance which expires automatically and that the provisions of.....
Judgment:
ORDER

P. Govinda Menon, J.

1. All these references are by the learned Sessions judge of Ernakulam recommending that the conviction and sentence passed On the accused in. these cases be set aside on the ground that the provisions contained in Section 242, Cri. P. C. have not been compiler) with.

2. Accused in all these eases are employees of the Indian Post and Telegraph Departmentwho were convicted by the learned Munsiff-Magistrate of Alwaye under Section 4 of the Essential Services Maintenance Ordinance 1 of 1960. The charge against them was that they went On strike and absented from duty. When they were asked to show cause why they should not be convicted they pleaded guilty and the learned Magistrate convicted them on their plea of guilty.

3. The accused took up the matter in revision to the Sessions Judge of Ernakulam and the point that was raised was that the learned Magistrate did not properly explain the accusation to the accused as contemplated under Section 242 Cr. P. C. and that their admission cannot be taken as plea-of guilty of the offence under Section 4 of the Ordinance. Accepting the contention the learned Sessions Judge has referred these cases to this court under Section 438, Cr. P. C.

4. From what the learned Sessions Judge has stated in para 8 of his judgment it is seen that what happened in the lower court was this. The charge-sheet filed by the police was read out by the Magistrate to the accused and the accused was asked whether they had understood the same. They answered in the affirmative. Then the Magistrate asked them whether they had committed the of fence to which they answered 'yes'. Finally the Magistrate asked them whether they had any cause-to show why they should not be convicted and the accused replied 'No' and the learned Magistrate then convicted the accused.

5. The question that falls to be decided is whether this' would be sufficient compliance with the terms of Section 242, Cr. P. C. and if it is not so whether the conviction has to be set aside. Section 242 Cr. P. C. reads as follows : 'When 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 if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge'.

6. Though framing of formal charge is thusdispensed with, the section enjoins that the accused should be appraised of the substance of the accusation and it should be made clear for what he is being tried. In fact the concluding words of the section 'it shall not be necessary to frame a formal charge' appear to contemplate that in a summons trial there is a charge of an offence although it is not necessary to embody it in writing in accordance with the provisions of Sections 221, 222 and 223. The intimation to the accused of the particulars of the offence takes the place of a formal charge. If therefore it is not explained to the accused what the offence is, but they are only told what the allegations in the complaint are, the procedure would be bad.

7. Though the particulars of the offence stated, need not be recorded, the proceedings of the Magistrate must indicate that the explanation was actually made. There is nothing in this case to , show that besides reading the charge sheet, the offences Were explained.

8. It is also necessary that in explaining the offence to the accuse the Magistrate shouldstate the necessary ingredients of the offence as otherwise the plea o guilty by the accused might mean nothing more than an admission of an act which constitutes but a part of the offence punishable in law. This is all the more important under an Act or Ordinance which is of a Very recent date where the parties, the lawyers and even the court may not be quite familiar with its provisions. All the decisions are uniform in holding that if the Magistrate does not explain what the offence is, there is non-compliance with the terms of the section.

9. Section 4 of the Ordinance is in the following terms:

'Any person who commences a strike which Is illegal under this Ordinance Or goes or remains on, or otherwise takes part in, any such strike shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two hundred rupees, or with both'.

Strike is defined in Section 2(1) (b) of the Ordinance:

' 'Strike' means the cessation of work by a body of persons employed in any essential service acting in combination or a concerted refusal or arefusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment'.

10. Concerted action is thus the gist of the offence. Unless this aspect is brought specifically to the notice of the accused it cannot be said that the charge against them was properly explained. The plea of guilty then would mean nothing more than an admission that they did not report for duty as alleged which act by itself would not constitute an offence of going on strike as contemplated in the Ordinance.

11. In Willie (William) Slaney v. State of Madhya Pradesh, (S) AIR 1956 SC 116 the question whether the omission to frame a charge was an illegality that cuts at the root of the conviction and makes it invalid or whether it is a curable irregularity came up for consideration and his Lordship Bose, J., has observed:

'Before we proceed to set out Our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of Justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person sets a full and fair trial along certain well-established and well-understood line..; that accord with notions of natural justice.

If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for winch he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is notvitiated unless the accused can show substantialprejudice. That, broadly speaking, is the basic principle on which the Code is based'.

His Lordship further observed:

'Except where there is something so vital 'as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves, as for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain 'the nature of the charge to him and so forth.

These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kinds is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would, he struck down at once'.

12. The learned counsel for the accused has argued that the prejudice is apparent In this case because the accused appears to have admitted the offence without understanding the nature of, the accusation and that was due only to the failure of the Magistrate to comply with the provisions of the section in explaining the nature of the charge to the accused. There is considerable force in the submission made by the learned counsel. I am not prepared to say that the defect here is inconsequential and that the accused has not been misled or prejudiced in their defence. It cannot be asserted that if the Magistrate had properly explained the gist of the offence the accused would have pleaded guilty. For these reasons these references have to be accepted and the conviction and sentence have to be set aside. In a similar case in Crl. R. P. No. 305 of 1960, Anna Chandy J., held that the plea of guilty in such circumstances cannot be considered to be a plea of guilty to the facts alleged to disclose an offence under S, 4 of the Ordinance and set aside the conviction.

13. Ordinarily in such cases when conviction is set aside the case has to be remanded to the trial court for retrial according to law. The learned counsel has argued that in this particular case retrial need not be ordered as the Ordinance has expired by efflux of time. The learned counsel has brought to my notice the observations of his Lordship Patanjali Sastri J., in S. Krishnan v. The State of Madras, AIR 1951 SC 301 where it is stated:

'The general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires (Craies on Statutes, Edn. 4 p. 347). Preventive detention which would but for the Act authorising it, he a continuing wrong, cannot therefore be continued beyond the expiry of the Act itself.

14. The Ordinance is a temporary enactment. It expires by efflux of time. It is not like a statute which ceases to be operative by a repeal. The consequence is that Section 6 of the General Clauses Actdoes not apply to a temporary statute or Ordinance which expires automatically and that the provisions of Section 6 of the General Clauses Act cannot bereported to in respect of an Ordinance.

15. In State of, Punjab v. Mohar Singh Pratap Singh, (S) AIR 1955 SC 84, it has been held that Section 6 of the General Clauses Act cannot apply to an Ordinance expiring or ceasing to have effect. Their Lordships say:

Under Section 30 of the General Clauses Act, which corresponds to Section 27 of the Punjab Act the provisions of the Act are applicable to Ordinance as well. Of course, the consequences laid down in Section 6 of the Act will apply only when a statute or regulation having the force of a statute is actually repealed. It has no application when a statute, which is of a temporary nature automatically expires by efflux of time.

16. The decision of this High Court in K. Cherian v. K. Chandy, 1958 KLT 105: AIR 1958 Kerala 229 is also to the same effect, Koshi, C. J., observed:

'Regard being had to the fact that Act VIII of 1,950 was only a temporary Act, the provisions of Section 6, General Clauses Act, cannot apply to it and the proceeding initiated under Act VIII of 1950 must therefore terminate when the Act ceased to be law whether it be by efflux of time or by express repeal.'

17. It therefore follows that while things which are completed did not stand annulled with the expiration of the Ordinance it is not permissible' to continue proceedings which are pending except in cases where the Ordinance itself or any subsequent legislation specifically provides for the continuance of such proceedings. In this case it is admitted) that there is no 'such [provision. The case dealt with by the Supreme Court in (S) AIR 1955 SC 84 is an instance where though the Ordinance had expired the proceeding started after the expiry of the Ordinance was allowed to be continued because of an enactment which was passed providing for such continuance.

18. In Gopi Chand v. Delhi Administration, AIR 1959 SC 609, Gajendragadkar, J., has stated:

'It is urged that the Act which came into force on March 29, 1949, was due to expire and did expire on August, 14, 1951, and so the proceedings taken against the appellant under the summons procedure after the expiration of the temporary Act were invalid. It is argued, that in dealing' with this point, it would not be permissible to invoke the provisions of Section 6 of the General Clauses Act because the said section deals with the effect of repeal of permanent statutes. This argument no doubt is well founded. As Craies has observed, 'as a general rule, unless it contains some special provisions to the contrary, after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect'. This principle has been accepted by this court in AIR 1951 SC 301 at p. 304. 'The general rule in regard to a temporary statute is'' observed Patanjali Sastry, J., 'that in the absence of special provision to, the contrary, proceedings which are 'being taken against a person under it will ipso facto terminate as soon as the statute expires.' It is true that the Legislature can and, often enough does avoid such an anomalous consequence by enacting in the temporary statute a saving provision, and the effect of such a saving provision is in some respects similar to the effect of the Provisions of Section 6 of the General Clauses Act. As an illustration we may refer to the decision in Wicks v. Director of Public Prosecutions, 1947 AC 362. In that case an offence against Defence (General) Regulations made under the Emergency Powers (Defence) Act, 1939, was committed during the currency of the Act and the offender was prosecuted and convicted after the expiry of the Act. The contention raised by the offender that his prosecution and conviction were invalid because at the relevant time, the temporary Act had expired was rejected in view of the provision of Section 11 Sub-section (3) of the Act. This Sub-section had provided that the expiry of the Act shall not affect the operation thereof as respects things previously done or omitted to be done. The House of Lords agreed with the view expressed by Court of Criminal Appeal and held that it was clear that Parliament did not intend Sub-section (3) to expire with the rest of the Act and that its presence in the statute is a provision which preserved the right to prosecute after the date of its expiry. Since the impugned Act does not contain any appropriate saving section the appellant would be entitled to contend that after the expiration of the Act, the procedure laid down in it could no longer be invoked in the cases then pending against the appellant. We would like to add, that in the present case, we are not called upon to consider whether offences created by a temporary statute cease to be punishable on its expiration.'

It is therefore extremely doubtful whether the accused could now be proceeded against for the contravention of Section 4 of the Ordinance.

19. It has also been brought to my noticethat the accused has already undergone the sentence of imprisonment for failure to pay thefine imposed and In the case where retrial wasordered by this court in Crl. R. P. No. 305 of 1960the State Government had withdrawn the prosecution. Considering all these circumstances' itseems to me that interests of justice do not require that a retrial should be ordered. The references are accepted and the conviction and sentence passed on the accused in all the casesare set aside.


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