1. The petitioner in this case has, to my mind, made out a case for re-trial. He succeeds on the point of law, but whether on the merits he will at the end of the day have to rue his success is another matter. He was charged with an offence under Section 46, Clause (a), Bengal Excise Act, for being in possession of illicit liquor. The maximum punishment provided for an offence under this section is imprison-ment for a term of six months or, and a fine of Rs. 1000. Obviously, an offence under this section should be triable as a summons case under the Criminal Procedure Code. Under Section 4, Clause (v), of the Code a 'summons case' is defined to be a case relating to an offence, and not being a warrant case, and Clause (w) says that 'warrant case' means a case relating to an offence punishable with death, transportation, or imprisonment for a term exceeding six months. The procedure for the trial of a summons case is laid down in Ch. 20 while that for a warrant case is laid down in Ch. 21 of the Code. There is a difference between the two, the main difference lying in the fact that in a warrant case it is necessary to frame the charge, and secondly, that the accused has the right to reserve cross-examination of the prosecution witnesses till a late stage. The complaint in this case is that although having regard to Section 46, Excise Act, the trial could be properly held as a summons case, still by reason of Section 62 of the Act the procedure of a warrant case is rendered imperative. Section 62 says:
If any person, after having previously been convicted of an offence punishable under Section 46, among other sections, subsequently commits and is convicted of an offence punishable under any of those sections, he shall be liable to twice the punishment which might be imposed on a first conviction under this Act.
2. In the present case, there was a previous conviction for an offence under Section 46, and the petitioner was consequently liable to a maximum punishment of twelve months, or and fine of Rs. 2000. It is said that the prosecution really was one under Section 46 read with Section 62, Excise Act, and therefore the Magistrate had no jurisdiction to try the case as a summons case. At one stage of the argument, I was inclined to think, having regard to the stage at which the fact of a previous conviction is or is required to be brought to the notice of the Court, that in such circumstances the Court would have been justified in commeaning and proceeding with the trial as a summons case, and that it was only upon conviction in such a trial that the warrant case procedure might be followed in dealing with the question of sentence. In other words, the question of an enhanced sentence under Section 62 might form the subject matter of a separate trial to which the provisions of Ch. 21 of the Criminal P.C. might be made applicable. This is the view which has in fact found favour with the learned District Magistrate. On further consideration, however, I came to the conclusion that this was not a correct view to take. As a matter of fact in the present case it appears that the fact of the previous conviction had been mentioned in the chalan itself by which the accused was sent up. It cannot be said therefore that at the commencement of the trial the trying Magistrate was not cognizant of the fact that the sentence which he might have to pass would exceed the limit set by Section 46, Excise Act. It may be that Section 62 does not create a new offence, but deals merely with the question of enhancement of punishment. But in considering whether foe trial should be in accordance with the procedure of a summons case or of a warrant case, it is not pertinent to consider the nature of the offence, but only the measure of the punishment which may be inflicted. That constitutes the deciding factor.
3. Where therefore as in the present case it was apparent from the beginning that the accused was liable to imprisonment exceeding six months by reason of a previous conviction under the provisions of Section 62, Bengal Excise Act, I think the proper procedure for the Magistrate to adopt was that laid down for a warrant case. The irregularity of following the summons case procedure instead of the procedure for warrant case is not a mere matter of form. The difference between the two forms of trial is, as I have indicated, of sufficient importance to lead to an almost indefeasible presumption of prejudice to the accused. I hold accordingly that the trial in the present case) was not in accordance with law, and must; therefore be set aside, and that the irregularity was of such a character that it could not be cured by Section 537, Criminal P.C. or any of the other curative provisions of the Code. I may add that in sup. port of his argument Mr. Mukherji called my attention to a decision of the Nagpur Judicial Commissioner's Court, in Gaya Prosad v. Emperor AIR 1932 Nag 111. This case seems to be almost on all fours with the present case, and I may say that this influenced me greatly in coming to the conclusion I have. Reference was also made by Mr. Mukherji to a case which is cited in this judgment Emperor v. Chinnapayan (1906) 29 Mad 372 which shows that where a case triable as a warrant case is tried as a summons case, the irregularity amounts to an illegality and vitiates the trial. The result is that this rule is made absolute, and the conviction of and sentence passed on the petitioner are set aside, and I direct that petitioner be re-tried by some other Magistrate in accordance with law.