STATE OF KERALA Vs. ACHUTHA PANICKER

JUDGEMENT

(1.) THIS is an appeal filed by the State against acquittal of the respondent who was the accused in a private complaint C. C. No. 232 of 1973, instituted before the Chief Judicial Magistrate, Manjeri, by the Drugs inspector, Malappuram, alleging commission of offences punishable under S. 7 of the Essential Commodities Act, 1955 read with Clause. 15 (2) and 17 of the Drugs (Price Control) Order, 1970. The respondent was acquitted under S. 247 of the code of Criminal Procedure, 1898, hereinafter called the Old Code, on the ground that the complainant was absent on July 15,1974, the date on which the case was posted for bearing.

(2.) THE learned State Prosecutor submitted that the order of acquittal is clearly illegal, as S. 247 of the Old Code has absolutely no application to the facts of this case which is a warrant case governed by the provisions relating to warrant cases.

(3.) THE learned State Prosecutor submitted that, as the learned Magistrate purported to acquit the accused, this can be treated as an appeal. Even if S. 417 of the Old Code is not in terms attracted, the matter having been brought to the notice, this Court has power to interfere with the order impugned in exercise of its revisional powers. An appeal, in a proper case, can be treated as a revision (see THE State v. Balaprasad, ILR. 1954 Nag. 757 ). A question of interest, when does a trial commence, arises in this regard. THE trial of an accused person commences when he is called upon to plead to a charge and the proceeding upto the point of framing a charge is in the nature of an inquiry. THEre is real distinction between a trial and an inquiry. THE final order in a trial is either a conviction of an acquittal and this order, so long as it is not set aside, would be a bar to subsequent proceedings for the same offence. An accused person is entitled to raise the plea of autrefois convict Or acquit, as the case may be. In the case or an inquiry, the final order of discharge would not be a bar to fresh proceedings. THE various sections in the Code of Criminal Procedure indicate that the framers of the Code intended to maintain a distinction between "inquiry" and "trial". THE term "trial" was defined in the Code of 1872 but this definition was dropped in the Code of 1882. Though trial has not been defined either in the Old Code or in the New code, both contain the definition of inquiry. (See S. 4 (k) of the Old and the corresponding S. 2 (g) of the New Codes.) S. 2 (g) is practically a reproduction of s. 4 (k); the only change is that the word "includes" in the latter has been substituted by the word "means". THE definition of inquiry impliedly defines trial and this definition puts it beyond doubt that an inquiry is different from trial and that inquiry stops when the trial begins. (See Kingam Savaranna v. State reported in A. I. R. 1957 Andhra Pradesh 472 ). S. 252 to 259 of the Old Code and S. 244 to 249 of the New Code are the relevant sections which apply to warrant cases instituted otherwise than on police report. Regarding the procedure in this respect, no material or far reaching changes have been made in the New Cods. It is quite clear from the various provisions in the sections referred to above, that the trial in a warrant case (instituted otherwise than on a police report, commences only after a charge is framed. In Food Inspector v. Seetharam Rice W Oil Mills (1974 KLT 685) a Full bench of this Court, while construing the word 'trial' in S. 20a of the prevention of Food Adulteration Act observed that the trial in a warrant case (instituted otherwise than on police report) commences only after framing of a charge against the accused. THE proceeding before a Magistrate in a warrant case (instituted otherwise than on a police report) under Chapter XXI of the old Code is only an inquiry until a charge is framed and it becomes a trial only after a charge is framed. (Vide State v. Ambaram: A. I. R. 1953 M. B. 1; sriramulu v. Veerasalingam: I. L. R. 38 Mad. 585; Palaniandy Goundan v. Emperor: i. L. R. 32 Mad. 218 and Narayanaswami Naidu v. Emperor: I. L. R. 32 Mad. 220 ). In the case of a summons case, the trial starts as soon as the particulars of the offence, which take the place of a charge, are stated to the accused as enjoined under S. 242 of the Old Code S. 251 of the New Code. By Act XXVI of 1955, the Code of 1898 was amended and a new section, S. 251a in Chapter XXI was introduced. THE corresponding sections in the New Code are S. 238 to 243 and 248. THEse sections prescribed the procedure to be followed in the trial of warrant cases instituted on police report. THE material difference in procedure brought about by this amendment is that, unlike in a case instituted otherwise than on police report, no evidence is recorded before a charge is. framed. THE word'trial' used in S. 251a (1) of the Old Code (S. 238 of the New Code) must be considered and construed with regard to the particular context in which it is used and with regard to the scheme and purpose of the other provisions governing the matter. Sub-section (3) of S. 251as. 240 (1) states that, if the magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable as a warrant case and if he i competent to try and adequately punish the accused, he shall frame a charge. THE charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty or claims to be tried (sec sub-section (4) of S. 251a- S. 240 (2) ). If the accused pleads guilty, the Magistrate may in his discretion convict the accused thereon. If he claims to be tried, a date has to be fixed for the examination of witnesses. On the conclusion of the trial, the accused is either convicted or acquitted. In substance, the nature and scope of the procedure laid down by sub-sections (1) and (2) of S. 251a is different and distinct from the procedure prescribed by sub-sections (3) to (13) of the same section. While an order of discharge passed under S. 251a (2) of the Old Code is revisable under s. 436 of that Code, an order of discharge under S. 239 of the New Code can be interfered in revision under S. 398 of the same Code It is highly significant to note that S. 436 and 398 mentioned above deal only with the power to order inquiry and under these sections the High Court or the Sessions Judge is empowered in revision only to pass an order directing further inquiry into not retrial of the case of an accused who has been discharged. All these unmistakably indicate that the proceeding upto the stage of an order of discharge under S. 251a (2) S. 239 does not partake the nature of a trial. On a careful consideration of all the sub-sections of S. 251a and S. 238 to 243 and 248 of the New Code and also the context in which the term'trial' in S. 25a (1)238 is used it can be reasonably concluded that the meaning intended by this term was not trial in the limited or strict sense. THE word appears to have been used in a very general and wide sense. Interpreting the word 'trial' occurring in S. 251a (1), Veeraswamy J. , as he then was, held, in In re pakkirisamy Pillai reported in AIR 1962 Mad. 142, that the proceeding preceding an order of discharge under subsection (2) of S. 251a is not a trial in the strict sense but is only in the nature of an inquiry. A Division Bench of the high Court of Andhra Pradesh in Fakruddin v. State Police, reported in AIR. 1962 Andhra Pradesh 236, held that the charge framed under sub-section (3)S. 251a when the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XXI is the stags at which the trial of a warrant case commences and till then the procedure concerns the preliminary steps. I am in respectful agreement with these views of the High Courts of Madras and Andhra Pradesh.