STATE OF MAHARASHTRA Vs. GOVIND MASU

JUDGEMENT

(1.) THESE two appeals which raise a common question may be disposed of by a common judgment.

(2.) THE respondent in each case was tried for an offence under Section 85 (2), Bombay Prohibition Act. He was convicted by the trial Mag. and sentenced to rigorous imprisonment for one month and to pay a fine of Rs. 100, in default, rigorous imprisonment for fifteen days. The conviction in each case was based upon a plea of the accused, viz. that he admitted the offence. From the order of conviction and sentence the resp. in each case appealed to the Ses. J. , Poona and the learned Sess J. set aside the conviction and sentence in each case, directed the fine, if paid, to be refunded and ordered that each of the two respondents should be re-tried on the game facts. The reason for reaching thia conclusion was that the Ses. J. took the view that the learned trial Mag. should have followed the procedure applicable to a warrant case in each of the two cases.

(3.) NOW, the respondent was charged with having committed an offence under Section 85 (2), Bombay Prohibition Act, 1949. Section 85 (2) provides, on conviction, for a first offence a sentence of imprisonment for a term which may extend to three months and fine which may extend to Rs. 500, and for a subsequent offence imprisonment for a term which may extend to one year and fine which may extend to Rs. 1,000. In each of the two cases the respondent was charged for a first offence, and the question is what procedure is applicable to each of the two cases. Now, the expression "warrant-case" is defined in Section 4 (w) of the Criminal P. C. which provides that "warrant-case" means a case relating to an offence punishable with death, transportation or imprisonment for a term exceeding six months. Having regard to thia definition, it is clear that if the offence is a first offence, the procedure to be applied is a procedure applicable to a summons case. This will be clear from Section 262 which provides, so far as material, that in trials under this Chapter, the procedure prescribed for summons-cases shall be followed in summons-cases, and the procedure prescribed for warrant-cases shall be followed in warrant-cases, except as hereinafter mentioned. When the matter was argued before the learned Ses. J. he took the view that the proper procedure to be applied was a procedure applicable to warrant-cases, and in support of his conclusion he relied upon a decision of this Ct. in Emperor v. Gopal Dattatraya Pande, (1947) crim. App. No. 513 of 1947 on 15-12-1947 (Unrep.), decided by Chagla C. J. and Gajendragadkar J. Now, if this case decides the question, the learned Ses. J. was bound to follow the decision, and equally, if the case decides the question which has to be decided in this case, then we too are bound to follow it. But the question is whether, the point involved in the present case has really been decided in that case. It seems to me, that it has not been decided in that case. There, the accused was convicted under Section 43 (1) (a), Abkari Act read with Govt. Notfn. No. 374/39 dated 1-10-1940. Under Section 43 (1), Abkari Act, the sentence to be imposed for a first offence is imprisonment for a term which may extend to six months and fine which may extend to R3. 1000 and for a subsequent offence imprisonment which may extend to two years and fine which may extend to Rs. 2,000. Now, it is obvious that the learned Judges thought that inasmuch as the sentence was a sentence of two years, the proper procedure to be applied was a procedure relating to warrant cases. If that was so, then the learned Ses. J. was bound to follow that decision and equally we would be bound to follow it. But in this case the position is different. Each of the two respondents was charged with an offence under Section 85 (2) as a first offence and no previous conviction was mentioned. That a previous conviction can be mentioned in a charge is clear from the provisions of Section 221 (7), Cr. P. C. Since there was no previous conviction mentioned, it is apparent that the proper procedure to be applied in the case of a first offence is a procedure to be applied in summons-cases, and that procedure was applied. If that was so, it seems to us that the learned Ses. J. was wrong in thinking that to each of the two cases under appeal the learned trial Mag. should have applied the procedure applicable to warrant-cases. But Sbri Bapat for the respondent in Cri. App. No. 252 contends that the procedure relating to a warrant-case is a convenient procedure to adopt because under that procedure an accused person has got certain rights. Now, speaking for myself, I am not impressed by that argument; merely because a particular procedure is a convenient proce dure, that is no ground for saying that that procedure should be applied. The procedure to be followed is the procedure laid down in the Cr. P. C. In this case the offence is a first offence and the sentence in such a case is a sentence of imprisonment less than six months. It is obvious that there is no ground for holding that the procedure applicable to a warrant case ought to be applied. It seems to us, there fore, that the learned Ses. J. was wrong in thinking that the procedure to be applied to each of the two cases was a procedure relating to a warrant case.