MIRZA BAIG Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioner before this Court has been convicted under S.32 of the Mysore Excise Act, 1965 (hereinafter referred to as the Act), and sentenced to rigorous imprisonment for three months and to pay a fine of Rs.100 in default to undergo rigorous imprisonment for two weeks, by the learned Judicial Magistrate, First Class (First Court, Civil Station) Bangalore, in CC.No.899 of 1971. The appeal filed by the petitioner was dismissed by the learned First Additional Sessions Judge, Bangalore, who confirmed the conviction and sentence passed on the accused. In this revision petition, the Petitioner has challenged the legality and correctness of the said conviction and sentence passed on him.

(2.) Sri Abdul Wajid Khan, learned Counsel appearing on behalf of the petitioner has contended that the procedure adopted by the learned Magistrate is illegal. The offence under S.32 of the Act is punishable with rigorous imprisonment for two years and as such, the case should have been tried as a warrant case. The learned Magistrate in the instant case followed the summons procedure and this has resulted in grave prejudice to the accused. The learned Counsel has pointed out that the trial Court violated the provisions of S.60A of the Act and the case should have been tried as a summary case, unless the Court gave reasons. In the instant case, the Court has not done so. The learned Counsel has strongly relied on the decisions rendered in Bandulal v. State, AIR 1962 Bom. 258, Public Prosecutor v. Vaijnath, AIR 1971 AP. 48 and State v. Bhaskaran, AIR 1971 Kerela 188 in support of his contention that if a warrant case is tried as a summons case, the whole trial is vitiated.

(3.) The learned Government Pleader appearing on behalf of the State, on the other hand argued that when a warrant case is tried as a summons case, the proceedings cannot be said to be vitiated as the same is curable under S.537 of the CrPC. He has relied on the decisions rendered in AIR. 1961 SC. 986, AIR. 1961 All. 590 and AIR. 1962 Guj. 231, in support of his contention.