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Ghisia and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Revn. Nos. 28 and 191 of 1958
Judge
Reported inAIR1959Raj266; 1959CriLJ1359
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 251A and 252; Rajasthan Excise Act, 1950 - Sections 67; Opium Act, 1878 - Sections 9; Rajasthan Excise (Amendment) Act, 1958 - Sections 20
AppellantGhisia and ors.
RespondentState
Appellant Advocate Prakash Chandra, Adv.
Respondent Advocate Kansingh, Deputy G.A.
Cases ReferredMagga v. State of Rajasthan
Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -.....modi, j.1. these are two criminal matters which raise a common question of law, and we propose to dispose of them by a single judgment. the question for determination is whether, the trial of a warrant case, which is instituted otherwise than on a police report, under section 251-a of the code of criminal procedure, while it should have been tried in accordance with the procedure laid down in section 252 cr. p. c. and the next following sections amounts to an illegality which would vitiate the trial. it is necessary to state just a few facts of the two cases which have been referred to us.2. in criminal revision no. 28 of 1958, the accused ghisia, balu and mangia were convicted by the special magistrate, jaipur under section 54 (a) of the rajasthan excise act (no. ii) of 1950 (hereinafter.....
Judgment:

Modi, J.

1. These are two criminal matters which raise a common question of law, and we propose to dispose of them by a single judgment. The question for determination is whether, the trial of a warrant case, which is instituted otherwise than on a police report, under Section 251-A of the Code of Criminal Procedure, while it should have been tried in accordance with the procedure laid down in Section 252 Cr. P. C. and the next following sections amounts to an illegality which would vitiate the trial. It is necessary to state just a few facts of the two cases which have been referred to us.

2. In Criminal Revision No. 28 of 1958, the accused Ghisia, Balu and Mangia were convicted by the Special Magistrate, Jaipur under Section 54 (a) of the Rajasthan Excise Act (No. II) of 1950 (hereinafter referred to as the Excise Act) for distillation of illicit liquor, and each of them was sentenced to three months' rigorous imprisonment. The case was challaned in the court of the Magistrate by the Excise Inspector. The accused were given copies of the relevant documents under Section 173 of the Code of Criminal Procedure and a charge was framed against them and they were tried under the procedure laid down in Section 251-A of the Code.

They disclaimed all connection with the crime but were eventually convicted and sentenced as stated above. They went in appeal to the Sessions Judge Jaipur, District Jaipur, who dismissed the appeal. Thereupon the accused filed Criminal Revi-sion No. 28 of 1958 in this Court, which, in the first instance, came before a learned Single Judge.

The only point raised before the learned Judge was that the Magistrate was wrong in adopting the procedure under Section 251-A in this case as it was not instituted on a police report but was taken cognizance of on a complaint filed by the Excise Inspector and therefore the conviction of the accused was bad and must be quashed. On behalf of the accused, reliance was placed on two Single Judge decisions of this Court, namely, State v. Bhagwana, ILR (1958) 8 Raj 525 : (AIR 1959 Raj 248) and Chhitar Singh v. State, ILR (1958) 8 Raj 1206.

In both these cases, it was held that a Magistrate taking cognizance of a case on the report of an Excise Officer cannot be deemed to have taken cognizance of it as on a police report. As the accused had, however, been tried in both these cases under the procedure applicable to a case instituted On a police report under Section 251-A Cr. P. C., the conviction was quashed in one case by this Court and in the other by the Sessions Judge and was upheld by this Court, and the cases were sent back for re-trial in accordance with the procedure laid down under Sections 232 to 250 Cr. P. C.

It was contended before the learned Single Judge that these cases required reconsideration by a larger Bench as the trial thereof could not be held to have been vitiated in the absence of prejudice, and no prejudice was or could have possibly been caused to the accused on account of the adoption of the procedure under Section 251-A instead of that under Section 252 Cr. P. C., and the next following sections.

3. In the other case, namely, Criminal Revision No. 191 of 1958 before us the accused Mahendra Singh was convicted under Section 2 of the Opium Act (No. 1) of 1878 (hereinafter referred to as the Opium Act) for possession of a few seers of opium by a Sub-Divisional Magistrate, Karanpur, and the accused was sentenced to one month's rigorous, imprisonment and a fine of Rs. 500/- and in default to further rigorous imprisonment for six months.

In this case also the accused was challaned by the Excise Inspector. He pleaded not guilty and the trial of the case was held by the Magistrate in accordance with the procedure prescribed under Section 251-A. The accused went in appeal to the Sessions Judge, Ganganagar, who upheld the conviction and sentence. Consequently the accused preferred the present revision in this Court which came before the same learned Single Judge.

The same contention as in the first case was raised before the learned Judge, namely, that the procedure followed by the Magistrate in the trial of this case was illegal and was sufficient to vitiate the trial. The learned Single Judge, therefore, ordered that this revision be linked up with the aforesaid revision. This is how both these cases have come up before us.

4. It is conceded before us by the learned Deputy Government Advocate that cognizance was taken by the Magistrate in both these cases on the report of the Excise Inspector, in the one case under Section 67 of the Excise Act, and in the other, under Section 20 of the Opium Act, and that as the law stood at the time, these reports did not amount to a police report in the sense in which that expression has been used in Chapter XIV of the Code of Criminal Procedure. (See Sections 157, 158 and 173).

5. It was brought to our notice that by theRajasthan Excise Amendment Act (No. XXII) of 1958, Section 67 of the Excise Act has since been amended and that by this amendment it has been provided that a report of the Excise Inspector under Section 67 shall be treated for all purposes of trial to be a report made by a police officer within the meaning of Clause (b) of Sub-section (1) of Section 190 Cr. P. C. But admittedly this amendment was not in force at the time with which we are concerned.

6. That being so, it cannot but follow that the procedure followed by the Magistrate in the trial of these two cases under Section 251-A was incorrect. The short question then is whether this irregularity amounts to an illegality sufficient to vitiate the trial.

7. We may point out at the very outset that in the two cases on which reliance was sought to be placed before the learned single Judge, this particular aspect of the controversy was not raised at all, and it was assumed as if the trial was illegal, and it was on this footing that the cases were sent back for re-trial.

8. But it is this aspect which has been pointedly raised now, and it is strenuously contended on behalf of the State that even though these cases were tried according to the procedure laid down for the trial of cases instituted on a police report, the trial was good enough, and that in any case no prejudice could have been caused to the accused and, therefore, we should not interfere with their conviction.

9. Now before the Code of Criminal Procedure (Amendment) Act, 1955 (No. XXVI of 1955) came to be enaeted, there was a uniform procedure laid down for the trial of warrant cases irrespective of the consideration whether a case was instituted on a police report or otherwise, as for example, on a private complaint. By the Amendment Act, however, two different procedures have been prescribed; one, where a case is instituted on a police report and another where a case happens to be instituted otherwise than On a police report.

Section 251-A which has been newly introduced lays down a complete procedure to be adopted in the first class of cases while in the other class of cases sections 252 to 259 of the Code prescribed the procedure to be followed. The object behind this differentiation in the procedure is to accomplish speedier disposal of warrant cases instituted on a police report by saving judicial time and without at the same time prejudicing the accused.

This is apparently based on the recognition which the Legislature has thought fit to accord to the investigation by the police which after all is said and done is a department of the Government, and its business is to investigate crime through trained personnel in accordance with the procedure laid down in the Code of Criminal Procedure.

Therefore it is that cases instituted on a police report have been classified into a special category and a comparatively simple and expeditious procedure has been laid down for the trial of such cases, and it is provided that when the accused appears or is brought before a Magistrate at the commencement of the trial, he should satisfy himself that the documents referred to in Section 173 Cr. P. C. have been furnished by the police to the accused, and if not he must cause them to be so furnished, and upon a consideration of all the documents referredto in Section 173 and after making such examination ofthe accused as the Magistrate thinks necessary and after hearing the prosecution and the accused, the Magistrate may frame a charge against the accused if he considers that there is ground for presuming that the accused has committed an offence which he is competent to try and which can be adequately. punished by him.

In other words, the old procedure of recording evidence of the prosecution before the framing of the charge has been entirely dispensed with in the interests of speedier justice. After the charge is framed, it has to be read out and explained to the accused and he is asked whether he pleads guilty or not. If the accused does plead guilty, the Magistrate must record the plea and may in his discretion convict him.

If, on the other band, the accused does not plead guilty or refuses to plead or claims to be tried, the Magistrate must fix a date for the examination of witnesses. It is then provided that the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution provided that he may allow the cross-examination of any witness to be deferred pending the examination of any other witness or he may allow any witness to be recalled for any further cross-examination.

Thereafter the accused is called upon to enter upon his defence and produce his evidence. If the accused after entering upon his defence applies td the Magistrate to compel the attendance of any prosecution witness for further cross-examination, the Magistrate must issue process unless he considers that such application is frivolous or vexatious and has been made to defeat the ends of justice.

There is an important proviso to this, and that is that where the accused has cross-examined or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled unless the Magistrate is satisfied that it is necessary for the purposes of justice.

After all such evidence has been recorded, if the Magistrate comes to the conclusion that the accused is guilty, he must pass sentence upon him according to law, while if he comes to the conclusion that the accused is not guilty, he must acquit the accused. This is the simplified procedure which has been laid down under Section 251-A of the Code in cases instituted on police report.

10. As to all other cases which are not instituted on a police report, the Code retains the old procedure which is embodied in Sections 252 to 259 of the Code. In such cases when the accused appears or is brought before a Magistrate, he must proceed to hear the complainant and take all such evidence as the prosecution intends to produce.

It may be pointed out here that the Magistrate has no power to require the accused forthwith to state his plea or where he admits his guilt to convict him without taking any evidence as in a summons case (Vide Sections 242 and 243 Cr. P. C.). It must also be observed that while the procedure laid down under Section 251-A in the trial of cases instituted on a police report is that no examination of prosecution witnesses is necessary before charge, the trial of cases under Section 253 for obvious reasons contemplates that the Magistrate must record the evidence of the complainant, if any, and of such other witnesses as may be produced in support of the prosecution.

It may be pointed out here that this sectiondoes not expressly refer to the right of the accused to cross-examine the prosecution witnesses and, therefore, some courts have taken the view that the accused has no right and need not be permitted to cross-examine the witnesses before the framing of the charge. With all respect, we are not inclined to accept this view as sound, and we consider it sufficient to draw attention to the language of Section 252 itself in this connection which enjoins the Magistrate to 'take all such evidence as may be produced in support of the prosecution'.

The word 'evidence' where it relates to the recording of oral evidence necessarily imports not only examination-in-chief but also cross-examination, and re-examination. It is another matter that the accused, may choose not to avail himself of this opportunity of cross-examination, and where he does so, nothing can compel him to exercise it.

The position, therefore, under the procedure laid down under Section 252 clearly is that the accused has the opportunity to cross-examine prosecution witnesses before a charge may be framed against him, and where upon the taking of such evidence as referred to in Section 252 and examining the accused, if necessary, the Magistrate finds that no case against the accused had been made out, he must discharge him.

It has also been provided that where the Magistrate at any previous stage of the case considers the charge to be groundless, he can discharge the accused, but he must record his reasons for doing so. Where, however, the Magistrate entertains the opinion that there is ground for presuming that the accused has committed an offence which the Magistrate is competent to try and which can be adequately punished by him, he must frame a charge and read and explain it to the accused and his plea must then be recorded.

If he pleads guilty, the Magistrate may in his discretion convict him on such plea, but where he does not plead guilty or refuses to plead or claims to be tried, Section 256 further provides him an opportunity to cross-examine any of the prosecution witnesses where evidence has already been taken. In fact, the section says that the accused shall be required to state, at the commencement of the next hearing, or, where the Magistrate, for reasons to be recorded in writing, so thinks fit, forthwith, whether he wishes to cross-examine any, or, if so, which of the prosecution witnesses whose evidence has already been taken, and where the accused expresses his wish to do so the witnesses named by him must be called and allowed to be cross-examined and re-examined.

Thereafter the remaining witnesses for the prosecution are required to he examined and then the accused is required to enter upon his defence and produce his evidence. Under Section 257 the accused after he has entered upon his defence has been given a further opportunity to apply for compelling the attendance of any witness whom he wishes to cross-examine, though the Magistrate has been given the power to refuse such an application in the case of a witness who has already been cross-examined or whom the accused had the opportunity of cross-examining unless the Magistrate is satisfied that such further opportunity is necessary in the interests of justice. This provision of course corresponds to Sub-section (9) of Section 251-A.

11. Having set out above the main features of the trial of the two classes of warrant cases, we findthat there are vital points of difference between the two modes of trial although the procedure relates to one and single genus, namely, the trial of warrant cases as for example, contra-distinguished from the trial of summons cases. Under Section 251-A the accused has no right to claim that oral evidence should be recorded before a charge is framed, and necessarily, therefore, he has no opportunity whatsoever to cross-examine the prosecution witnesses before the framing of the charge,

Thus, in warrant cases instituted otherwise than on a police report, the accused has three opportunities of cross-examining the prosecution witnesses : (i) before the charge is framed; (ii) after the charge is framed and before the accused is asked to enter upon his defence, and (iii) after the accused has entered upon his defence subject of course to certain restrictions contained in the relevant sections. Again, the right of the accused under Section 256 to recall and cross-examine prosecution witnesses who have already been examined before the framing of the charge is an absolute one, while under Section 257 it is subject to the discretion of the Magistrate.

Under the mode of trial prescribed under Section 251-A, however, the accused has an absolute right to cross-examine the prosecution witnesses only once under Sub-section (7), and there is a further opportunity under Sub-section (9), but this is a very limited one, as is the case under Section 257 which applies to the trial of the other class of warrant cases. The only other provision to which we may perhaps draw attention in this connection is the one that is contained in Section 259.

This section provided that when the proceedings have been instituted upon complaint and upon any day fixed for the hearing of the case, the complainant is absent and the offence may be lawfully compounded or is not a cognizable one, the Magistrate may, in his discretion, at any time before the charge has been framed, discharge the accused. No such provision is to be found for discharge of the accused on accoupt of the absence of the complainant under the other mode of procedure.

12. Now, the importance of the right of cross-examination, particularly in criminal trials, cannot be over-estimated, and it cannot be denied that the fate of many a criminal case hangs upon the successful exercise of the right of cross-examination and the opportunities for its exercise. In the words of Professor Wigmore, 'cross-examination is the greatest legal engine ever invented for the discovery of truth',

We may also reproduce, with all respect, the observations of their Lordships of the Privy Council in Pulukuri Kottaya v. Emperor, AIR 1947 PC 67, in connection with the accused's right to cross-examine prosecution witnesses with reference to statements made by them to the Police under section 162 Cr. P. C., as the principle of those observations fully applies to the matter before us :

'The right given to an accused person by this section is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However slender the material for cross-examination may seem to be, it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate break-down of the whole of his evidence.'

We should also like to point out in this connection that the opportunity that is available to an accusedfor his discharge under the procedure laid down under sections 252 to 259 is ampler than in the case of the procedure laid down under Section 251-A. This, to our mind, is obvious. For, in the first place, under the last mentioned procedure no evidence upto the stage of framing the charge can be examined by the Magistrate himself, and, therefore, he has hardly any opportunity of forming firsthand impressions of such evidence as has been recorded by the police. In the second place, these statements have not been subjected to cross-examination. Therefore even though we are prepared to accept that the right of discharge is available to the accused even under the procedure laid down under Section 251-A, the opportunities for such discharge cannot obviously be as ample as- in the case of the other procedure.

There is, therefore, no denying the fact that under the procedure laid down in Sections 252 to 259, the accused has far larger facilities for his defence than under the procedure laid down under section 251-A.

13. In this connection, it may not be entirely out of place to refer to those cases decided before the Criminal Procedure (Amendment) Act, 1955, was introduced, where the view has been taken that the trial of a warrant case as a summons case amounts to an illegality which is sufficient to vitiate the trial.

14. In Emperor v. Chinnapayan, ILR 29 Mad 372, the Magistrate convicted the accused on an admission made by the accused without talcing any evidence and without framing a charge. It was held that if the case should have been tried as a warrant case, as it should have been, it would have been the duty of the Magistrate under Section 252 of the Code of Criminal Procedure to take such evidence as might be produced in support of the prosecution, and the accused could not have been called upon to plead until after a charge had been framed and read and explained to him.

It was further held that that was something more than an irregularity, and the accused might have been possibly prejudiced by the procedure adopted by the Magistrate, and on that view, the conviction was set aside.

15. This view was followed in Gayaprasad v. Emperor, AIR 1932 Nag 111, and it was held that the trial of a warrant case as a summons case was fatal to the trial as it amounted to an illegality.

16. The same point arose in Sufal Golai v. Emperor, AIR 1938 Cal 205. It was held that the irregularity of following the summons case procedure instead of the procedure for warrant case was not a mere matter of form, and that the difference between the two forms of trial was of sufficient importance to lead to an almost indefeasible presumption of prejudice to the accused, and it was further held that the irregularity was of such a character that it could not be cured by Section 537 Cr. P. C. or any of the other curative provisions of the Code.

17. It has- been pressed upon us that the procedure laid down by Section 251-A has been more or less assimilated to the procedure laid down for the trial of summons cases by the Magistrate of course with certain differentiating features; the main feature being that as a result of investigation by the police, a conclusion having been come to that the accused should be put On his trial, the officer in-charge of the police station is required to furnish to the accused copies of all important documents inthe possession of the police and of the statements of witnesses recorded by them.

18. Be that as it may, we are inclined to hold the view that the two procedures laid down for the trial of warrant cases, one under Section 251-A and the other under Section 252 and the following sections are so different in their nature, intrinsic application and their relative effect on the opportunities to an accused as respects his defence that we find it extremely difficult for ourselves to hold that the adoption of a procedure under Section 251-A for that prescribed under Section 252 to Section 259 is a mere irregularity which will not amount to an illegality in the absence of proof of actual prejudice. What we indeed wish to say is that in such a case it is hardly necessary for the accused to prove prejudice as a matter of fact, because, if we may say so, there is an almost irresistible presumption of prejudice and it is impossible to precisely gauge the effect of a trial which amounts to more or less a mis-trial. Our attention has been forcefully drawn to the decision of their Lordships of the Supreme Court in W. Slaney v. State of M. P., (S) AIR 1956 SC 116, in this connection by the learned Deputy Government Advocate. In this case, the two accused were charged under Section 302 read with Section 34 of the Penal Code, and there was no separate alternative charge framed under Section 302 against either of them.

It had been found by the courts below that one of the accused had inflicted the fatal blow, and, therefore, he was held guilty under Section 302 I. P. C. while the other accused was acquitted. The question arose whether an omission to frame a charge in the alternative under Section 302 I. P. C. was an illegality which vitiated the trial or a curable irregularity provided there was no prejudice against the accused.

It was held that the failure to frame a separate charge under Section 302 against the accused who had been charged under Section 302 read with Section 34 but convicted under Section 302 was only a curable irregularity which in the absence of prejudice could not affect the legality of his conviction under Section 302.

Bose J. who delivered the judgment on behalf of himself and the acting Chief Justice S. Rule Das,as he then was, held that 'sections 225, 232, 535 and 537(a) between them cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that whatever the irregularity, it is not to be regarded as fatal unless there is prejudice.' Learned Deputy Government Advocate argued on the basis of certain general observations contained in this judgment that after this decision of the Supreme Court, a trial should not and cannot be held to be bad on the ground of any procedural error unless it has caused prejudice to the accused or has resulted in failure of justice and that there was hardly any proof that prejudice had in fact been caused to the accused in the cases in question.

19. With profound respect, we are inclined to think that the present case does not suffer from a defect of that kind as came up for the consideration of their Lordships of the Supreme Court in the aforesaid case but exemplifies an error of an altogether different character, which in our judgment, goes to the very root of the case and amounts to what we may call a 'Mis-trial'. In this connec-tion we desire, with respect, to draw attention to the pinciple that when a trial is conducted in a manner different from that which is prescribed by the Code, the trial is bad and no question of curing an irregularity in such a case can arise, (see AIR 1947 PC 67),, or, putting it slightly in a different way, where such a 'mis-trial' occurs, an almost irresistible presumption of prejudice arises and the trial has to be struck down as bad and nothing contained under Section 537, Cr. P, C. can be held to cure such an irregularity.

20. We may in this connection also draw attention to certain observations of Bose J. himself in Slaney's case, (S) AIR 1956 SC 116 cited above which would lend support to the distinction we have in view:

'Under the Code as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the court is satisfied that there was prejudice.'

21. Again a little later occurs the followingpassage:--

'The sort of problem that we are now examining can only arise when an express provision of the Code is violated and then the root of the matter is not whether there is violation of an express provision, for the problem postulates that there must be, nor is it whether the provision is expressed in positive or in negative terms, but what are the consequences of such disregard. Does it result in an illegality that strikes at the root of the trial and cannot be cured or is it an irregularity that is curable?'

'In the end it all narrows down to this. Some things are illegal..............because the Codeexpressly makes them so; others are struck down by the good sense of Judges, who whatever expressions they may use, do so because those things occasion prejudice and offend their sense of fair play and justice.'

22. In the words of Chandrasekhara J. who delivered a separate judgment on his behalf and Jagannadhadas J. in this very case--

'The gravity of the defect will have to be considered to determine if it falls within one class or the other. Is it a mere unimportant mistake in procedure or is it substantial and vital? The answer will depend upon the facts and circumstances of each case. If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity, and prejudice by way of failure of justice will have to be established.'

23. Now we may state at once that the Code does not contain any express provision as regards the effect of an irregularity like the one with which we are concerned in this case before us. And, therefore, the question for decision is whether the trial of a warrant case instituted otherwise than on a police report in accordance with the procedure laid down under Section 25I.A instead of under the proper procedure prescribed by Sections 252 to 259 is a curable irregularity within the meaning of Section 537, Cr. P. C.

It is true that both modes of trial are prescribed in the Code itself and therefore it cannot be said of a situation like the present that the pro-cedure followed in the present cases was unknown to the Code or is. prohibited by it. At the same time, it cannot be forgotten that the Legislature in its wisdom has itself prescribed two separate procedures for the two classes of cases, namely, those instituted on a police report and those instituted otherwise and must have indeed done so for cogent reasons. We have already analysed the two procedures and pointed out their different characteristics and the underlying reasons for prescribing one kind of trial in the one class of cases and another procedure for the other class of cases.

We have no doubt that the mode of trial prescribed under Section 252 to Section 259 afford much larger facilities to the accused for his defence than that contained in Section 251A, particularly in view of the reasons aforementioned and which we need not repeat. Can it be said, in these circumstances, that the substitution of the one mode of trial by another is an unimportant mistake of procedure incapable by itself of depriving an accused of a fair trial as contemplated by the Code.

On a most anxious and careful consideration of the whole problem, we are disposed to hold the view that an irregularity of this character is of a vital character and is so serious that prejudice or a possible failure of justice should be accepted to be inherent in such a situation so that it is impossible to guage precisely the manner in or the extent to which the accused may have been prejudiced by such trial.

24. In this view of the matter, we are unable to agree with the view taken in Mahabir Prasad v. State, AIR 1958 Orissa 11, that the trial of a case according to the procedure laid down in Section 251A but which should have been tried according to the procedure laid down in Section 252 and the following sections cannot work any prejudice to the accused or that instead he gets the advantage of a speedy trial which advantage, with all respect, hardly countervails the more serious disadvantages of such a trial so far as the accused is concerned.

25. Before we conclude, we should also like to refer to a case of our own court which went up to their Lordships of the Supreme Court, namely, Magga v. State of Rajasthan, AIR 1953 SC 174. The facts in that case were that out of three assessors summoned to act by the Sessions Judge, one absented himself on the date of hearing and the Court thereupon ordered another person who was present in Court to act without going through the necessary formalities. Thereafter the absent assessor re-appeared and he was also allowed to sit and thereupon all the four assessors gave their opinion at the conclusion of the trial.

It was contended that the trial was bad and that the illegality could not be cured by the provisions of Section 537, Cr. P. C. This Court held that both the irregularities mentioned above were curable. Disagreeing with this view, as far as the second irregularity was concerned, their Lordships of the Supreme Court took the view that the trial conducted in the case was conducted in a manner different from that prescribed by the Code and was bad and that no question arose of curing an irregularity. It was further observed that the Code did not authorise a trial commenced with the aid of three named assessors to be conducted and completed with the aid of four assessors, and that it was not possible to say with any degree of certainty to what extent the opinion of the outgoing and the incoming assessors who did not attend the whole of the trial influenced the decision in the case, and, therefore, the trial was illegal.

We think that the principle of this case applies to the case before us although we do recognise that the kind of irregularity which has been committed in this case is of a different character from that committed in the aforesaid case.

26. For the foregoing reasons, we are clearly of the opinion that the trial in these two cases which were instituted otherwise than On a police report, according to the procedure laid down for a trial on a police report under Section 251A was bad and was a 'mis-trial' and amounts to an illegality sufficient to vitiate the trial and that the effect of such a mis-trial is extremely difficult to be precisely estimated and is bound, in the very nature of things, to cause prejudice to the accused, and, therefore, necessarily imports prejudice or failure of justice to them.

27. Consequently, we allow these revisions, setaside the convictions and the sentences of the accused and send these cases back to the trial Magistrate for a fresh trial in accordance with law.


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