MOHANLAL NANALAL SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Revision Application is directed against an order passed by the Sessions Judge Baroda dismissing an application for revision of the order of conviction and sentence passed against accused Nos. 1 and 2 for offences under section 323 of the Indian Penal Code. Accused Nos. 1 and 2 along with accused No. 3 were charged for offences under sections 323 504 and 506(2) of the Indian Penal Code. The charges for all the three offences against accused Nos. 1 2 and 3 were joined together and there was one joint trial for these offences. The learned Magistrate tried the case summarily and followed the procedure prescribed for summons cases. As a result of the trial the learned Magistrate convicted accused Nos. 1 and 2 of the offences under sec. 323 of the Indian Penal Code and sentenced each of them to pay a fine of Rs. 40/or in default to suffer rigorous imprisonment for seven days. The learned Magistrate acquitted accused Nos. 1 and 2 of the charges under sections 504 and 506(2) of the Indian Penal Code. So far as accused No. 3 was concerned she was also convicted by the learned Magistrate for the offence under section 323 of the Indian Penal Code but she was directed to be released on due admonition

(2.) Accused Nos. 1 and 2 being aggrieved by the order of conviction and sentence passed against them preferred a Revision Application in the Court of the Sessions Judge Baroda. A contention was raised for the first time before the learned Sessions Judge that the offences under secs. 504 and 506 of the Indian Penal Code being offences which were triable as warrant cases the procedure prescribed for warrant cases should have been followed by the learned Magistrate and since the learned Magistrate did not follow the procedure prescribed for warrant cases but tried the case as a summons case the whole trial was vitiated and the conviction recorded as a result of such trial was liable to be quashed. The learned Sessions Judge accepted the contention that the learned Magistrate was wrong in following the procedure prescribed for summons cases and that the learned Magistrate should have followed the procedure prescribed for warrant cases but held that this constituted only an irregularity and since accused Nos. 1 and 2 were acquitted of the offences under sections 504 and 506(2) of the Indian Penal Code there was no mis-carriage of justice and accused Nos. 1 and 2 were not in any way prejudiced on account of the case having been tried as a summons case and the irregularity was therefore cured by the provisions of sec. 537 of the Code of Criminal Procedure. On the merits the learned Sessions Judge came to the conclusion that the appreciation of evidence by the learned Magistrate could not be said to be in any way improper or perverse so as to call for interference by a Court of Revision. The learned Sessions Judge accordingly declined to make a reference to the High Court for setting aside the conviction and sentence passed against accused Nos. 1 and 2 and dismissed the Revision Application. Accused Nos. 1 and 2 thereupon preferred the present Revision Application before this Court.

(3.) The only contention which was urged by Miss V. P. Shah learned advocate on behalf of accused Nos. 1 and 2 was that since the offences under secs. 504 and 506(2) were offences in respect of which the procedure prescribed for trial of warrant cases was required to be followed the present case in which the charges for the offences under secs. 323 504 and 506(2) were joined should have been tried in accordance with the procedure laid down for trial of warrant cases. Miss V. P. Shah contended that under sec. 262 of the Code of Criminal Procedure it was obligatory on the learned Magistrate to follow the procedure prescribed for warrant cases and that inasmuch as the learned Magistrate followed the procedure prescribed for summons cases he was guilty of an illegality which vitiated the whole trial and the conviction based on such trial was liable to be set aside. Miss V. P. Shah relied on a decision of the Allahabad High Court reported in Mangi Lal v. Emperor (A.I.R . 1945 Allahabad 98) where Mulla J. has taken the view that sec. 262 of the Code of Criminal Procedure is an imperative provision and a breach of that provision constitutes not merely an irregularity but an illegality. The argument of Miss V. P. Shah was that the adoption by the learned Magistrate of the procedure prescribed for summons cases was an illegality and could not therefore be cured by resort to the provisions of sec. 537 of the Code of Criminal Procedure and this illegality rendered the whole trial bad and vitiated the conviction under sec. 323. This contention of Miss V. P. Shah is in my opinion not well-founded. It is no doubt true that though the offence under section 323 is triable as a summons case the charge for the offence under sec. 323 having been joined with the charges for the offences under sections 504 and 506(2) as arising out of the same transaction the case should have been tried in accordance with the procedure prescribed for warrant cases and the learned Magistrate was obviously in error in following the procedure prescribed for summons cases. This error however in my opinion constituted merely an irregularity and not an illegality. In a recent case decided by the Supreme Court reported in Gopal Das Sindhi v. State of Assam (1961) 1 S. C. J. 573 the question arose whether the adoption by the Magistrate of the procedure prescribed for warrant cases in a case where the offence was triable as a summons case constituted an illegality or a mere irregularity curable under the provisions of sec. 537 of the Code of Criminal Procedure and dealing with this question the Supreme Court observed as follows :