SITA RAM SAHU Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The applicant Sita Ram Sabu was convicted by the trial Couit under Section 7/16 of the Prevention of Food Adulteration Act and sentenced to six months R. I. and a fine of Rs. 1000/-, in default further R. I. for six months. In appeal by him the Sessions Judge has, allowing the appeal, sent back the case to the trial Court for a fresh decision. It is against this order that the accused has filed this revision. The ground on which the Sessions Judge directed retrial is that in the record of the case the statement of the Food Inspector, P. W. 1 Suresh Kumar, recorded partly on 24-9-1977 and partly on 9-6-1978 which appears to have been scribed on the dictation of the Presiding Officer by the Reader of the Court has not been signed by the Magistrate. The place for signatures below the endorsement "the statement was recorded in open Court under my dictation" and just above the designation is blank. The learned Sessions Judge held that in view of Section 275 (4) Cr. P. C. this statement could not be treated as evidence. He, however, went on to hold that the prosecution could not be allowed to suffer on account of omission of the Magistrate. The latter part of the Sessions Judge's reasoning is obviously fallacious. He overlooked tfe position that by not allowing the prosecution to suffer he was directing the accused to suffer a second trial for an omission of the Magistrate. The ctarge was that the applicant bad refused to allow the Food Inspector to take sample of mustard oil from his shop and bad locked the shop. I am clear that in the circumstances of this case if the view of the learned Sessions Judge was correct the proper course was to set aside the conviction but not direct a retrial. Coming to the question of Section 275 (4) Cr. P. C. , the learned Judge has observed that this section was mandatory. It is well settled that the mere use of the word 'shall' cannot always determine whether the provision is mandatory or directory. In cases where it is not held to be mandatory the effect of non- obstante of the provision turns upon whether any prejudice has been caused to the accused in his defence and a failure of justice has resulted for otherwise it would only be a curable omission in the proceedings during trial under Section 465 Cr. P. C. Now, there is and has been no suggestion at any stage in the present case that the record of the Food Inspector's statement was not faithful and correct. Then the omission to sign under Section 275 (4) Cr. P. C. becomes merely an irregularity. This view is forti fied by the circumstance that the Magistrate is required to sign evidence taken down by him in his own handwriting because Section 275 (4) does not limit the obligation of signatures to evidence taken down oa the dictation of the Magistrate. The object of the provision is obviously to preserve the authenti city of the record and preclude tampering. It has been held that a trial is not vitiated because the successor Magistrate appended his signatures to the record of evidence (vide L. D. Healy 1969 (2) S. C. R. 948-the book was not available but the reference is found in B. B. Mitra's Commentary on the Code of Criminal Procedure 15th ( Edn. at page 175. There is also the fact that this is not a perjury trial in wnich the statement on oath which is the basis of prosecution has to be proved wary rigorously. I am, tnerefore, of (he opinion that Section 275 (4) Cr. P. C. is not mandatory in the sense that non- compliance with it would not nullify the evidence of the witness provided there is no doubt about the authenticity of the record. On this view the case has to be sent back to the Sessions Judge for decision on merits which he has not given. In the result, the revision is allowed, the order of the Sessions Judge is set aside and the case is remanded to the Sessions Judge for deciding the criminal appeal on merits in the light of observations in this judgment. .