1. This is a rule calling upon the Crown to show cause why certain proceedings pending against the petitioner should not be quashed. The petitioner is the managing director of a firm called the Victor Oil Co. Ltd. He has been put on his trial for certain alleged offences under the Motor Spirit (Duties) Act of 1917. I do not propose to set out all the facts at length. Briefly the contention of the Crown is that the petitioner mixed some kerosine oil with diesel oil, and in so doing brought himself within the provisions of the Act read in connexion with the Finance Act of 1922. The petitioner denies the allegation. But the prosecution have certainly now some circumstantial evidence from which a Court of fact might be asked to infer that the petitioner did actually mix these two oils. The complaint was made as long ago as 25th April 1939. The accused petitioner appeared on 15th May. The trial was then conducted in a most dilatory manner by the Crown and was still going on as late as 13th September. By that time the Public Prosecutor was changed. The new Public Prosecutor, Mr. Mukherjee, pointed out that the Magistrate had been following a wrong procedure as the case was a summons case and not a warrant case. He, therefore, prayed that the whole ease should be tried all over again. The petitioner then obtained this rule from my learned brother and Edgley J. They directed the Crown to show cause why the order of the Magistrate directing a fresh trial should not be set aside and why the proceedings should not go on from the stage they had reached on 13th September.
2. I have no doubt that, if the petitioner had been convicted and then moved this Court on the ground that a wrong procedure had been followed, it would have been held that the case was covered by Section 537, Criminal P.C. But, unfortunately, that stage has not yet been reached. The present position is that it is really impossible for us as a Court of revision to order the Magistrate to follow an illegal procedure. We accordingly re-issued the rule and called upon the Crown to show cause why the proceedings should not be quashed. The position is that the time occupied from April to September has been entirely wasted and the money which the petitioner has spent on his defence has been thrown away. The Crown should have pointed out the error in the procedure at the time when the case was started, and not waited to do so until it was practically finished. Apart from several adjournments the case was actually heard on no fewer than 12 days. The maximum sentence for the two offences with which the petitioner is charged is a fine of Rs. 1000. The maximum sentence is of course only to be imposed in the most, serious type of case. In my opinion, the money which has been thrown away in this way is quite sufficient punishment for any offence that the petitioner might have committed.
3. The prosecution was conducted in a most unsatisfactory way. The cross-examination of witnesses was taken up on 26feh May. This process went on at intervals until 12th June. The Magistrate had already given the Crown adjournments which would have been quite unsuitable in a summons case and on 7th June he informed the Grown that they must finish their evidence on the 12th and that no further adjournment would be allowed. In spite of that, on the 12th, the Grown applied for another adjournment. The Magistrate went back on his order and allowed the Crown to start fishing for evidence. The position on the 12th apparently was that there was no evidence upon which the Crown could ask the Magistrate to convict. Had the petitioner applied to this Court then, I for my part, would have had no hesitation whatever in quashing the proceedings. The rule is accordingly made absolute and we direct that further proceedings pending against the petitioner be quashed.
4. I agree.