Anant Singh, J.
1. These two References Nos. 50 and 51 of 1969 have been heard together and this Judgment will govern both of them as they are on identical facts.
2. Abdul Rehman, and Abdul Gufar, were tried separately under the summary procedure by a Magistrate first class; both on a charge under Section 159/268 of the Municipal Act. Each was convicted, and sentenced to a fine of Rs. 100, in default to one month's rigorous imprisonment on their pleading guilty, as it is said.
3. The Charge against each was that on a particular day, each of the accused was carrying adulterted milk for sale in Srinagar. Both were caught by the police in Ghotabazar, and in due course, put on their trial.
4. The prosecution did not lead any evidence in support of the charge against either of the accused, but each of them was convicted, and sentenced in the manner aforesaid on his pleading guilty.
5. The learned Sessions Judge, in his reference, has pointed out that the confessional statement said to have been made by the accused before the trial court, was not signed by either of them, and hence the conviction of both was illegal inasmuch as the prosecution did not put in any evidence to support the charge.
6. The learned Counsel Mr. Malik Abdul Karim, appearing on behalf of the State, has opposed the reference on the ground that a confessional statement of an accused, accepting his guilt, is not required to be signed by such accused in a summary trial, as this trial was. Section 364 of the Criminal Procedure Code prescribes the manner of examination of an accused in a Criminal trial. Sub-clause (4) of Section 364 provides:
Nothing in this section shall be deemed to apply to the examination of an accused person under section 263.' which in turn prescribes the procedure for recording of evidence in a summary trial including 'the plea of the accused and his examination if any.
7. Section 364 supra, of course, requires an accused to sign his statement in ordinary trial, but as already pointed out, Sub-clause (4), of it does not apply to the examination of an accused under Section 263. It would thus appear that the learned Counsel, Mr. Malik, is right in pleading that in a summary trial, the examination of an accused is not required to be signed by him.
8. The fact, nevertheless, remains that even in a summary trial the accused must be told of the offence, and if he accepts it, he has to be told further, if he has any cause to show for it,
9. For a summons trial, Section 242 of the Code requires that 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....'
10. The subsequent Section 243 then provides for the conviction of the accused on his admitting the offence, if he shows no sufficient cause, why he should not be convicted. '
11. Again for the trial of warrant cases, Sub-section (4) of Section 251-A of the Code requires the charge to be read, and explained to the accused when he is required to plead to the charge, admitting his guilt or claiming to be tried. As the subsequent sub-paragraph (5) provides, the Magistrate shall record the plea, and may in his discretion convict the accused, if he pleads guilty to the charge.
12. Sub-clause (g) of Section 263, which prescribes the mode of summary trial requires 'the plea of the accused, and his examination, if any', to be recorded by the Magistrate.
13. Now the plea of guilt must be to an offence, which has to be clearly explained to the accused before his plea of guilt, can be acted upon,
14. In the two cases in hand, an identical question was put to each of the two accused, whether on the particular day, he had brought within the Municipal area adulterated milk for sale, and each of the two accused answered the question by saying 'yes' to it. I must observe that the examination of the accused was not sufficient inasmuch as none of the two accused was told that the carrying of adulterated milk within the Municipal Area was an offence, and if they had any cause to show for it. It may be that these accused after admitting the facts constituting the offence had some explanation for it. This was not done, and it was prejudicial to the accused.
15. Thus the conviction of the two accused was not proper inasmuch as neither of them, apart from merely admitting the facts of the question put to them, pleaded guilty to the charge, after having been told that the facts alleged constitute an offence.
16. The conviction of both the accused, and the sentence imposed upon them must be set aside as illegal, and they are so set aside, The References are accepted, yet for other reasons as stated above. The cases are remanded to the Magistrate for fresh trial, and disposal according to law. If the accused do not plead guilty after their proper examination, the prosecution will be at liberty to lead its evidence in support of the charge.