DAVEED CHELLAYAN Vs. STATE

JUDGEMENT

(1.) This reference is by the learned Sessions Judge of Nagercoil. The accused in this case was convicted by the Kuzhithurai First Class Magistrate for an offence under S.8(1)A of Act XIII of 1950 and sentenced to pay a fine of Rs. 40 and in default of payment of fine to simple imprisonment for 20 days. The case against the accused is that he was found keeping in his possession 14 ounces of arrack in a bottle underneath a granary in his house which is within the prohibition area. On the ground that the accused pleaded guilty, the learned Magistrate convicted him without taking evidence. When the accused was brought before court on 27.10.1955 he was asked by the learned Magistrate whether he had committed the offence mentioned in the charge and he stated that he had not committed the offence. The case was then adjourned to 7.11.1955 and the accused was kept under police custody. On 7.11.1955 a statement signed by the accused in which he admitted his guilt was put into court by the prosecution. The learned Magistrate asked the accused whether he had signed the statement and the accused admitted that he had signed it and that he had committed the offence. On the basis of this admission the learned Magistrate convicted the accused without taking evidence. In revision filed before the Sessions Court by the accused, the learned Sessions Judge held that the procedure adopted by the Magistrate was wrong and has accordingly made this reference.

(2.) We agree with the opinion of the learned Sessions Judge that the procedure adopted by the Magistrate is opposed to law. Having recorded the plea of not guilty, the learned Magistrate was bound to proceed with the examination of the prosecution witnesses and dispose of the case on the merits. There is no provision in the Criminal Procedure Code authorising the Magistrate to question the accused a second time as to whether he pleaded guilty or not and to convict him on the plea of guilty. S.242 of the Code of Criminal Procedure provides that when the accused appears oris brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and that he shall be asked if he has any cause to show why he should not be convicted. S.243 provides that if the accused admits that he has committed the offence his admission shall be recorded as nearly as possible in the words used by him and that if he shows no sufficient cause why he should not be convicted the Magistrate may convict him accordingly. S.244 provides that if the Magistrate does not convict the accused under S.243 or if the accused does not make an admission of guilt the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. S.245 provides that if the Magistrate upon taking evidence finds the accused not guilty he shall record an order of acquittal and that if he finds the accused guilty pass sentence upon him according to law. It is thus clear that when the accused pleaded not guilty when he was questioned by the learned Magistrate under S.242 the Magistrate was bound to proceed in the manner prescribed by S.244. The learned Magistrate has clearly gone wrong in questioning the accused a second time and in convicting him on the plea of guilty. (Vide Laljiram v. Corporation of Calcutta AIR 1928 Cal. 243 ). We accept the reference and set aide the conviction entered against the accused and the sentence passed on him by the learned Magistrate and send back the case for fresh trial by the learned Magistrate according to law and in the light of the observation made above.