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Mohanlal Nandlal Sharma and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn Appln. No. 12 of 1961
Judge
Reported inAIR1962Guj231; (1962)3GLR433
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 241, 251 and 262; Indian Penal Code (IPC), 1860 - Sections 323, 504 and 506(2)
AppellantMohanlal Nandlal Sharma and anr.
RespondentState
Appellant Advocate V.P. Shah, Adv. for N.R. Oza, Adv. and; B.H. Shah, Adv.
Respondent Advocate H.M. Choksi, Govt. Pleader
DispositionRevision dismissed
Cases Referred(vide Umer Saheb v. State
Excerpt:
.....be followed in summons cases and the procedure prescribed for warrant cases shall be followed in warrantcases' and the adoption of the wrong procedure in either' case must, therefore, amount merely to an |irregularity and not an illegality i am, therefore, of the opinion that the adoption of the procedure prescribed for summons cases by the learned magistrate was a mere irregularity which did not vitiate the trial and was curable by the provisions of section 537 of the code of criminal procedure if if did not occasion any failure of justice. the question, then arises as to whether any failure of justice was occasioned as a result of the learned magistrate following the procedure prescribed for summons cases. 4. while dealing with the question whether any failure of justice was..........sentence passed against accused nos. 1 and 2 for. offences under section 323 of the indian penal code. accused nos. i and 2 along with accused no. 3 were charged for offences under sections 323, 504 and 506(2) of the indian penal code. the charges for all the three offences against accused nos. 1, 2 and 3 were joined together and there was one joint trial for these offences.the learned magistrate tried the case summarily and followed the procedure prescribed for summons cases. as a result of the trial the learned magistrate convicted accused nos. 1 and 2 of the offences under section 323 of the indian penal code and sentenced each of them to pay a fine of rs. 40/- or in default to suffer rigorous imprisonment for seven days. the learned magistrate acquitted accused nos. 1 and 2 of the.....
Judgment:
ORDER

P.N. Bhagwati, J.

1. This Revision Application is directed against an order passed by the Sessions Judge, Baroda, dismissing an application for revision of the order of conviction and sentence passed against accused Nos. 1 and 2 for. offences under Section 323 of the Indian Penal Code. Accused Nos. I and 2 along with accused No. 3 were charged for offences under Sections 323, 504 and 506(2) of the Indian Penal Code. The charges for all the three offences against accused Nos. 1, 2 and 3 were joined together and there was one joint trial for these offences.

The learned Magistrate tried the case summarily and followed the procedure prescribed for summons cases. As a result of the trial the learned Magistrate convicted accused Nos. 1 and 2 of the offences under section 323 of the Indian Penal Code and sentenced each of them to pay a fine of Rs. 40/- or in default to suffer rigorous imprisonment for seven days. The learned Magistrate acquitted accused Nos. 1 and 2 of the charges under Sections 504 and 506(2) of the Indian Penal Code. So far as accused No. 3 was concerned she was also convicted by the learned Magistrate for the offence under Section 323 of the Indian Penal Code but she was directed to be released on due admonition.

2. Accused Nos. 1 and 2 being aggrieved by the order of conviction and sentence passed against them preferred a Revision, Application In the Court of the Sessions Judge, Baroda. A contention was raised for the first time before the learned Sessions Judge that the offences under Sections 504 and 506(2) of the Indian 'Penal Code being offences which were triable as warrant oases, the procedure prescribed for warrant cases should have been followed by the learned Magistrate and since The learned Magistrate did not follow the procedure prescribed for warrant cases but tried the case as a summons case, the whole trial was vitiated andthe conviction recorded as -a result of such trial was liable to be quashed.

The learned Sessions Judge accepted the contention that the learned Magistrate was wrong, in following the procedure prescribed for summons cases and that the learned Magistrate should have followed the procedure prescribed for warrant cases but held that this constituted only an Irregularity and since accused Nos. 1 and 2 were acquitted of the offences under Sections 504 and 506(2) of the Indian Penal Code, there was no miscarriage of justice and accused Nos. 1 and 2 were not in any way prejudiced on account of the case having been tried as a summons case and the irregularity was, therefore, cured by the provisions of Section 537 of the Code of Criminal Procedure.

On the merits the learned Sessions Judge came to the conclusion that the appreciation of evidence by the learned Magistrate 'could not be said, to be in any way improper or perverse so as to call for interference by a Court of Revision. The learned Sessions Judge accordingly declined to make a reference to the High Court for setting aside the conviction and sentence passed against accused Nos. 1 and 2 and dismissed the Revision Application. Accused Nos. 1 and 2 thereupon preferred the present Revision Application before this Court.

3. The only contention which was urged by Miss V.P. Shah, learned advocate on behalf of accused Nos. 1 and 2 was that since the offences under Sections 504 and 506(2) were offences in respect of which the procedure prescribed for trial of warrant cases was required to be followed, the present case in which the charges for the offences under Sections 323, 504 and 506(2) were joined should have been tiled in accordance with the procedure laid down for trial of warrant cases. Miss V. P. Shah contended that under Section 262 of the Code of Criminal Procedure it was obligatory on the learned Magistrate to follow the procedure prescribed for warrant cases awl that inasmuch as the learned Magistrate followed the procedure prescribed for summons cases, he was guilty of an illegality which vitiated the whole trial and the conviction based on such trial was liable to be set aside . Miss V. P. Shah relied on a decision, of the Allahabad High Count reported in Mangi Lal v. Emperor, AIR 1945 All 98 where Mulla J. has taken the view that Section 262 of the Code of Criminal Procedure is an imperative provision and a breach, of that provision constitutes not merely an irregularly, but an illegality.

The argument of Miss V. P. Shah was that the adoption by the learned Magistrate of thee procedure prescribed for summons cases was an illegality and could not, therefore' be cured by resort to the provisions of Section 537 of the Code of Criminal Procedure and this illegality rendered the whole trial bad and vitiated the conviction under Section 323. This contention of Miss V. P. Shah is, in my opinion not well founded. It is no doubt true that, though the offence under Section 323 is triable as a summons case, the charge for the offence underSection 323 having joined with the charges for the offences under Sections 504 and 506(2) as arising out of the same transaction, the case should have been tried in accordance with the procedure prescribed for warrant cases and the learned Magistrate was obviously in error in following the procedure prescribed in summons cases. This error, however, in my opinion, constituted merely an irregularity and not an illegality. In a recent case decided by the Supreme Court reported in Gopal Das Sindhi v. State of Assam (1901) 1 SCJ 573: (AIR 1981 SC 986) the question arose whether the adoption by the Magistrate of the procedure prescribed for warrant cases in a case where the offence was triable as a summons case constituted an illegality or a mere irregularity curable under the provisions of Section 537 of the Code of Criminal Procedure and dealing with this question the Supreme Court observed as follows :

'Regarding the second contention, it is true that after the amendment of the Criminal Procedure Code an offence under Section 448 is triable as a summons case and Mr. Goswami adopted the procedure prescribed for a case, triable as a warrant case. We are, however, of the opinion that this irregularity does not vitiate the proceedings and is curable by tho provisions of Section 537, as no prejudice to the accused has been established in the case.'

It is clear from this judgment of the Supreme Court that the adoption Of one procedure instead of the other is a mere irregularity which does not vitiate the proceedings and is curable by the Provisions of Section 537 of the Code of Criminal Procedure. Miss V. P. Shah sought to distinguish this judgment by contending that in the case before the Supreme Court an offence triable as a summons case was tried in accordance with the procedure prescribed for a warrant case whereas in the present case the procedure prescribed for a summons case was followed even though the case Was triable as a warrant case.

Miss V. P. Shah contended that the procedure prescribed for a warrant case was more beneficial to the accused than the procedure prescribed for a summons case and that if the procedure prescribed for a warrant case was followed in the case of an offence triable as a summons case there was no prejudice to the accused but if the procedure prescribed for a summons case was follwing lowed in the case of an offence triable as a warrant case prejudice would be caused to the accused and It was, therefore, obvious that though the adoption of the procedure prescribed for a warrant case in case of an offence triable as a summons case might be considered to be a mere irregularity, the adoption of the procedure prescribed for a summons case in case of an offence triable as a warrant case could not be considered to be a mere irregularity but amounted to an illegality which vitiated the whole trial.

Miss V. P. Shah thus attempted to draw a distinction between a case where the procedure prescribed for a warrant case was followed in case of an offence triable as a summons case and a case where the procedure prescribed for a summons case was followed in case of an offence trial-ble as a warrant case and contended that the judgment of the Supreme Court dealt only with the former case and did not cover the latter case.

Now it is no doubt true that in the- case before the Supreme Court the procedure prescribed for a warrant case was adopted in case of an offence triable as a summons case but the principle of the judgment must apply equally to a case where the procedure prescribed for a summons case is followed in case of an offence triable as a Warrant, case. In both cases the adoption, of the wrong procedure would be a mere irregularity and the Court would have to see whether such irregularity has occasioned any failure of justice. It must be remembered that the breach of every mandatory provision of the Code of Criminal Procedure does not render the trial of an accused person illegal however regrettable it may appear that the breach should have occurred. There is a distinction between provisions which prescribe the mode or manner of a trial and provisions which provide for the conduct of the trial. An infringement of a provision as to the mode or manner of a trial constitutes an illegality which vitiates the whole trial and cannot be cured by Section 537 of the Code of Criminal Procedure, but an infringement of a provision which prescribes even mandatory a matter relating to the conduct or a trial constitutes a mere irregularity which can be cured by Section 537 of the Code of Criminal Procedure, if there be no prejudice caused to the accused (vide Umer Saheb v. State, 1960 Cri LJ 573; (AIR 1960 Bom 205)). The test, therefore, for the purpose of determining whether the breach of any particular provision of the Code of Criminal Procedure constitutes an illegality or a mere irregularity is to see whether the provision prescribes the mode or manner of the trial or provides merely for the conduct of the trial.

Now Section 241 of the Code of Criminal Procedure prescribes that the procedure set out in Chapter XX shall be observed in the trial of summons cases and Section 251 prescribes that the procedure set out in Chapter XXI shall be followed in the trial of warrant cases. The Supreme Court in the judgment mentioned above held that the adoption of the procedure prescribed for warrant cases in case of offences, triable as summons cases constituted a mere irregularity and not an illegality though it involved the breach of the mandatory provision contained in Section 241; of the Code of Criminal Procedure. This would mean that according to the Supreme Court, Section 241 of the Code of. Criminal procedure which requires that the procedure prescribed for summons cases shall be followed in summons cases was a provision which did not prescribe the manner or mode of the trial but provided merely for the conduct of the trial, for if that Section had been regarded by the Supreme Court as containing a provision prescribing the manner or mode of the trial, the Supreme Court would have held the breach of the mandatory provision contained in that Section to be an illegality and not a mere irregularity. If Section 241 of the Code of Criminal Procedure is a provision which does not prescribe the manner Or mode of the trial but merelyprovides for the conduct of the trial, the breach of which would not constitute an illegality, itmust follow that Section 251 of the Code of Criminal Procedure is also equally a provision whichdoes not prescribe the manner or mode of the trial but merely provides for the conduct of thetrial, the breach of which cannot amount to an illegality. The nature of both the provisions being the same, if the breach of one provision constitutes a mere irregularity and not an illegality, the breach of the other provision must also equally constitute an irregularity and not an illegality. The adoption of the procedure Prescribed for summons cases in case of offences triable as warrant cases must, therefore, stand oh the same footing as the adoption of the procedure prescribed for warrant cases' in case of offences triable as summons cases and in both cases the consequence must be a mere irregularity and not an illegality. I do not, therefore, see how possibly can the judgment of the Supreme Court be distinguished as contended by Miss. V.P. Shah. The principle underlying the judgment of the Supreme Court must apply equally whether the procedure prescribed for warrant cases is followed in case of offences triable as summons cases or the procedure prescribed for summonscases is followed in case of offences triable as warrant cases. No doubt the trial in the present case was a summary trial and Section 263 or the Code of Criminal Procedure, therefore, applied to the trial and, not Section 241 or Section 251 or the Code of Criminal Procedure. But that makes no. difference for Section 292 of the Code of Criminal Procedure combines the provisions contained in Sections 241 and 251 of the Code of Criminal 'Procedure so far as summary trials are concerned and., prescribes that in summary trials the procedure prescribed for summons cases shall be followed in summons cases and the procedure prescribed for warrant cases shall be followed in warrantcases' and the adoption of the wrong procedure in either' case must, therefore, amount merely to an |irregularity and not an illegality I am, therefore, of the opinion that the adoption of the procedure prescribed for summons cases by the learned Magistrate was a mere irregularity which did not vitiate the trial and Was curable by the provisions of Section 537 of the Code of Criminal Procedure if if did not occasion any failure of Justice. The question, then arises as to whether any failure of justice was occasioned as a result of the learned Magistrate following the procedure prescribed for summons cases.

4. While dealing with the question whether any failure of justice was occasioned to accused No?. 1 and 2 by reason of the learned Magistratefollowing the procedure prescribed for summonscases, I must observe that the objections to this procedure adopted by the learned Magistrate could and should have been raised by accused Nos. 1 and 2 before the learned Magistrate but they failed to raise such objection and allowed the case to be tried in accordance with the procedure prescribed for summons cases. Out of thethree offences with which accused Nos. 1 and a were charged, the offences under Sections 504 .and 506(2) were the only offences which were triable as warrant cases. The remaining Offenceunder Section 323 of the Indian Penal Code was an offence triable as a summons case. Accused Nos. 1 and 2 were acquitted of the offences under Sections 504 and 506(2) and the conviction of accused Nos. 1 and 2 was only for the remaining offence under Section 323 which was triable asa summons case. If the offence under Section 323 was triable as a summons case, I do not sea what failure of justice could possibly be occasioned to accused Nos. 1 and 2 by reason, of the learned Magistrate following the procedure prescribed for summons cases. So far as the conviction for the offence under Section 323; is concerned, no Prejudice could possibly be caused to accused Nos. 1 and 2, for the procedure followed by the learned Magistrate was the procedure applicable to a trial for such offence. In my opinion no failure of justice was occasioned and no prejudice was caused to accused Nos. 1 and 2 as a result of the irregularity in the procedure adopted by the learned Magistrate and the conviction of accused Nos. 1 and 2 for the offence under Section 323 must therefore, be held to be saved by the curative Provisions of Section 537 of the Code of Criminal Procedure.

5. In the result this Revision Applicationfails and will be dismissed.


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