BANDULAL BALAPRASAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an application in revision by the accused, who has been convicted under clauses (b) (c) and (f) of section 65 and clause (b) of section 66 of the Bombay Prohibition Act. The offences under section 65 of the Act, are punishable with imprisonment for a term which may extend to three years. The case was, therefore, a warrant case and not a summons case. Section 116 of the Bombay Prohibition Act, provides that in all trials for offences under this Act, the Magistrate chsll follow the procedure prescribed in the Code of Criminal Procedure for the trial of summary cases in which an appeal lies. Sub-section (1) of section 262 , Criminal Procedure Code, provides that in summary trials 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 mentioned in the following sections in Chapter XXII. The trial Magistrates should, therefore, have follwed the procedue prescribed for warrant cases. He, however, tried the case as a summons case. It has, therefore, been urged on behalf os the accused that th trial was vitiated by the Magistrate's following a wrong procedure and that consequently the conviction of the accused is illegal. On the other hand, it has been urged on behalf of the State that the irregulairy is one, which is curable under section 537, Criminal Provedure Code, unless it is shown that prejudice has been caused to the accused.

(2.) WE have been referred to several decisions on this point, but we do not think that it is necessary to refer to most of them. The law on the subject has been summed up by the Privy Council in Pulukuri Kotayya v. Emperor, 74 Ind App 65 at p. 75: AIR 1947 PC 67 at p. 69) in these words;

(3.) THE failure of the trial Magistrate in this case to follow the procedure prescribed for warrant cases therefore, vitiates the trial. The conviction of and the sentence passed upon the accused are, therefore, set aside and the case will be sent back to the trial Court for retrial of the accused. Under sub-sections (2) and (3) of section 251-A, Criminal Procedure Code, in the trial of a warrant case, the Magistrate has first to examine the accused and after giving the prosecution and the accused an opportunity of being heard he has to frame a charge against the accused, unless he comes to the conclusion that the charge is groundless. The irregularity in this case, therefore, occurred when the Magistrate failed to frame a charge and proceded to record the evidence without framing a charge. The retrial of the accused should commence from the stage at which the irregularity occurred. The examination of the accused already made should be deemed to have ben made under sub-section (2) of section 251-A. The Magistrate should proceed further from this stage and after hearing the prosecution and the accused decide on the basis of the evidence already recorded and the examination of the accused already made, for what offences a charge should be framed. He should then frame a charge and thereafter proceed the to try the accused in accordance with the procedere to try the accused in accordance with the procedure prescribed in sections 262 and 264. The accused to continue on bail for a fortnight. In the meantime he should apply to the trial Court for bail.