EMPEROR Vs. NARJI BHALJI BHIL

JUDGEMENT

(1.) THIS is an appeal by the Government of Bombay. The facts of the case, out of which this appeal arises, are briefly these. On 13th August 1949, the police raided the hut of the accused. He was then found in possession of 5 seers of soaked mohura flowers. A boiler and other implements for manufacturing liquor were also found in the hut. The accused was them prosecuted Under Section 65 (f), Bombay Prohibition Act, 1919. He was tried by the Additional Resident Magistrate, First Class, Dohad, who is not empowered to try cases summarily. The accused pleaded guilty to the charge. THIS plea was accepted and the accused was sentenced to six months' rigorous imprisonment and a fine of Rs. 500. He appealed to the Sessions Judge, Panch Mahals, who set aside his conviction and sentence on the grounds that Under Section 116, Bombay Prohibition Act the case should have been tried summarily by a Magistrate, who was empowered to try cases in a summary manner and that as the accused had been tried by a Magistrate who was not so empowered, his conviction was illegal. The Sessions Judge, therefore, ordered the retrial of the accused. The Government of Bombay have come in appeal against the order passed by the Sessions Judge.

(2.) SECTION 116, Bombay Prohibition Act is in the following terms : "in all trials for offences under this Act, the Magistrates shall follow the procedure prescribed in the Code of Criminal Procedure for the trial of summary cases in which an appeal lies. " This section prescribes the procedure in accordance with which the offences punishable under the above Act are to be tried. It lays down that these offences should be tried in a summary manner, but it does not specify which Magistrate should try them in that manner. The procedure to be followed in the trial of summary cases, in which an appeal lies, is laid down in SECTIONs 262 and 264, Criminal P. C. Under SECTION 260 and 261, apart from District Magistrates, the only Magistrates who can try cases summarily are Magistrates who are specially empowered by the Provincial Government in that behalf, It has, therefore, been urged on behalf of the accused that as SECTION 116 is silent as to which Magistrates can try cases arising Under this Act summarily, the words "the Magistrates" in this section must be interpreted to mean the Magistrates who are competent to try cases in a summary manner. It has also been contended that under the Code Second and Third Class Magistrates (except Benches of such Magistrates, see SECTION 261) cannot be empowered to try cases in a summary manner and that the Legislature could not, therefore, have intended to authorise such Magistrates to try summarily offences under the Prohibition Act. The learned Government Pleader has, on the other hand, argued that all that SECTION 116 does is to direct that every person accused of an offence punishable under the Act shall be tried in a summary way, that it does not curtail or affect in any way the ordinary jurisdiction of Magistrates to take cognisance of and try offences, that the question which Magistrate is competent to try offences under the Act is to be determined by reference to Schedule II to the Code of Criminal Procedure and teat consequently offences under the Act can be Mad summarily not only by Magistrates, who are empowered Under SECTIONs 260 and 261 of the Code, but by any Magistrate who would be competent to try them Under Schedule II to the Code. The question is not free from difficulty. SECTION 36 of the Code and schedule III specify the ordinary powers of Magistrates. The power to try cases summarily is not one of these powers, but has to be conferred specifically Under SECTION 260 or 261, see also Schedule IV to the Code. It is, therefore, possible to argue that as the power to try cases in a summary manner is not one of the ordinary powers of a Magistrate, the only Magistrates who can try offences punishable under the Prohibition Act are Magistrates who are empowered to try cases summarily. The Magistrates who are empowered Under SECTIONs 260 and 261 can, however, try summarily only the offences mentioned in those sections. They cannot try any other offences in a summary manner, See Emperor v. Ganu Sadu, 52 Born. 254: (A. I. R. (15) 1928 Bom. 142) The fact that a Magistrate is empowered under the Code to try cases in a summary way would not, therefore, enable him to try summarily all offences under the Prohibition Act, unless this power is given to him by some other provisions of law. Apart from SECTION 116, Prohibition Act, there Is no provision either in this Act or in the Code under which Magistrates have been or can be empowered to try summarily all the offences punishable under this Act. The power to try a case and the manner in which it is to be tried are two different matters. It seems to me that SECTION 116 deals only with the second matter, i. e. about the mode of trial and that it does not curtail the ordinary powers of Magistrates to take cognisance of and try offences, but on the other hand, it authorises all Magistrates to follow the summary procedure while trying offences under the Act.

(3.) IT has also been contended that in view of Sub Section (2) of Section 262, Criminal P. C, the accused cannot be awarded a sentence of imprisonment exceeding three months. Section 262 is in chap, XXII of the Code and Sub-Section (2) of this section provides that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction "under this Chapter". IT has been urged that this is one of the provisions of the Code laying down the procedure for the trial of summary cases, and as Under Section 116, Prohibition Act, the offences under this Act are to be tried in accordance with the procedure prescribed in the Code for the trial of summary cases, no sentence of imprisonment exceeding three months can be passed in the case of conviction for any such offence. I do not think that this contention is sound. The words "any conviction under this Chapter" in Sub Section (2) of Section 262 show that this sub section applies only in those cases which are tried summarily by reason of the provisions contained in that chap. XXII, that is, in the case of conviction for any of the offences specified in Sections 260 and 261 of the Code. The question of sentence is also not a matter of procedure. A provision in a statute prescribing a sentence for any act imposes a liability or a penalty for that act and is, therefore, a substantive provision of law and not one dealing with a matter of procedure. Section 116 prescribes the procedure for the trial of cases arising under the Prohibition Act. Sub-Section (2) of Section 262 will, therefore, not apply in such cases. Section 65, Prohibition Act and other sections of this Act prescribe minimum sentences of imprisonment exceeding three months in respect of several offences, Sub-Section (2) of Section 260 of the Code provides that when in the course of a summary trial it appears to the Magistrate that the case is one which is of a character which renders it undesirable that it shall be tried summarily, the Magistrate shall proceed to re-hear the case in manner provided by the Code. This provision, therefore, enables a Magistrate to try a case in the ordinary manner, if he feels that it is one in which a sentence exceeding three months should be imposed. IT cannot be resorted to by Magistrates trying cases under the Prohibition Act, as Under Section 116 all such cases are to be tried in a summary way. The provisions in the Act prescribing minimum sentences exceeding three months will therefore be rendered nugatory, if the argument that Sub-Section (2) of Section 262 applies in such cases is accepted. The true meaning of any part of a statute is that which best harmonizes with every other part of it and a construction which will leave without effect any part of a statute must be rejected (see Maxwell on Interpretation of Statutes, 9th Edition, pages 31 and 19 ). Section 116 of the Act must therefore, be read along with the provisions prescribing minimum sentences of imprisonment exceeding three months for many offences, and if this is done, it will be clear that the Legislature did not intend that Section 262 (2) of the Code should apply in the case of convictions for such offences. In my opinion, therefore, sentences of imprisonment for periods exceeding three months can be awarded for offences punishable under the Bombay Prohibition Act, even though they are tried in a summary way.