MATHAI Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is an application in revision filed by the accused who has been convicted by the Munsiff -Magistrate of Perambra for an offence under section 27 of the Kerala Forest Act. The accused was charge sheeted for an offence under Section 26 of the Madras Forest Act. The offence is alleged to have been committed on 30 -3 -1962 and the Act in force at that time is the Kerala Forest Act which came into force on 18 -1 -1962. So the prosecution ought to be only under the Kerala Forest Act. An offence under Section 27 is punishable with imprisonment which may extend to three years and so it is a warrant case and not a summons case. The learned Magistrate, however, followed the summons case procedure and the accused was asked to show cause why he should not be convicted. The accused pleaded not guilty. Three witnesses were examined for the prosecution and one witness was examined for the defence. On the evidence the learned Magistrate found the accused guilty and convicted the accused under Section 27 of the Kerala Forest Act. It is contended by the learned counsel for the petitioner that the trial is vitiated, by the Magistrate following a wrong procedure and that consequently the conviction is illegal. On the other hand the State Prosecutor would contend that it is only an irregularity which could be cured under Section 537, Cr. P.C., unless it appears that prejudice has been caused to the accused. It is not necessary to refer to all the decisions bearing on this matter. The law on the subject has been summed up by the Privy Council in Pulukuri Kottayya v Emperor (AIR 1947 PC 67 at p. 69) in these words:

(2.) IT will be seen from the provisions in the Criminal Procedure Code that Offences triable by a Magistrate are classified into two broad categories, summons cases and warrant cases. Chapter XX deals with the procedure for summons cases and Chapter XXI lays down the procedure for the trial of warrant cases. Though the difference between the two procedures have been considerably reduced after the Criminal Procedure (Amendment) Act, 26 of 1955, there are still substantial differences between the two procedures and the accused is in an advantageous position when the warrant case procedure is followed. Therefore, when a warrant case is tried according to the procedure laid down for summons cases it will be difficult to hold that the trial is conducted in the manner prescribed by the Code. As stated by the Privy Council, when a trial is conducted in a manner different from that prescribed by the Code, the trial would be bad and no question of curing by the irregularity would arise. The failure of the trial Magistrate in this case to follow the procedure prescribed for warrant cases, therefore vitiates the entire trial - -Vide State of Kerala v Mary ( : 1960 K.L.J. 375).

(3.) AGAIN , in this case the learned Magistrate has tried the case summarily. Section 260 Cr. P.C. authorises a Magistrate of the First Class to try in a summary way offences not punishable with death, imprisonment for life, imprisonment for a term exceeding six months and certain other offences mentioned in the section. Offence under Section 27 is punishable with imprisonment for a term exceeding six months and so the Magistrate cannot try the case summarily. If the Magistrate tries a case summarily which he cannot do under Section 260, he acts without jurisdiction and the illegality of such a nature going to the very root of the trial clearly cannot be cured by Section 537, Cr. P.C. Section 537 Cr. P.C. says: