STATE OF MADHYA PRADESH Vs. SHANTILAL DAYASHANKER

JUDGEMENT

(1.) THIS is an appeal by special leave under Section 417 (3) of the Criminal Procedure Code from an order of Shri S. R. Sharma, Additional District Magistrate, Raipur, acquitting the respondent of charges under Sections 6 (1) and 15 of the Central Provinces and Berar Prohibition Act, 1988.

(2.) THE circumstances in which the order of acquittal was passed are these. On 9th July I960 a challan in respect of offences under Sections 6 (1) and 15 of the Act was presented in the Court of the Additional District Magistrate, Raipur, against the respondent and one Bhagwandas. The accused persons were present in the Court on this date. Thereafter the hearing of the case was adjourned from time to time. On 14th November 1960 the Magistrate examined the accused persons and posted the case for hearing on 15th November 1960. On this date also it was adjourned to the next day, that is, 16th November 1960. On 16th November, an objection was raised on behalf of the respondent Shantilal that he was merely a servant of Bhagwandas and not the manager or proprietor of the Usha Products, Raipur, and that the 190 gallons of rectified spirit and 35 gallons of denatured spirit which. was seized on 24th and 25th April 1960 from him could not be regarded as seized from his possession so as to make him punishable under Section 6 (1) or Section 15. On this objection being raised learned Counsel appearing for the prosecution urged that as the case was tried as a summons case the en-tire procedure laid down in chapter XX of the Criminal Procedure Code had to be followed and that the accused could not be acquitted at that stage on the ground that the police papers did not disclose any offence against him, and the objection raised on behalf of the accused could be considered only after the evidence had been recorded. The learned Magistrate overruled the objection raised by the prosecution taking the view that it was competent for him to acquit the accused without following the entire procedure laid down in Chapter XX if the police papers disposed that prima facie the accused had not committed any offence. The Magistrate stated his view thus: A perusal of Section 242 Cr. P. C. will, show that when the accused appears or is brought before a Magistrate, the particulars of the offence of which he is the accused have to be stated to him. This means that there should, be some ground with the Magistrate, to state the particulars of the offence. If the Magistrate finds that there is no offence, committed prima facie by the accused, as shown from the police papers or evidence whichever may be before the court there is no question, of stating the particulars of the offence. I feel it will be not correct to try an accused when there is no offence prima facie shown to have been committed by him. The law of Natural Justice will also bear this out. He then proceeded to consider the question whether the respondent Shantilal was the Manager of itlie Us ha Products or merely a servant, and finding that he was only a Munim came to the conclusion that on the language of Section 27 of the Indian Penal Code Shantilal's possession of the liquor could not be -regarded as possession on his own account so as to make him liable to any punishment under Sees. 6 and 15 of the Act. On this reasoning the learned trial Magistrate acquitted Shantilal directing that the case shall proceed only as against Bhagwan-das.

(3.) THE sole question that arises for determination in this case is whether it was open to the Magistrate to pass an order under Section 245 Cr. P. C. acquitting Shantilal on a perusal of the police papers without taking any evidence. The answer to the question admits of no doubt and the order of the trial Magistrate acquitting the respondent Shantila] is patently illegal and indefensible. Shri Rajendrasingh, learned Counsel appealing for the respondent, rightly made no attempt to support the view of the trial Magistrate that under Section 245 C. P. C. he could acquit the accused without recording any evidence. He, however, contended that the order of the trial Magistrate could be sustained under Section 249 Cr. P. C. which gave him the power to stop the proceedings at any stage without pronouncing any judgment either of acquittal or of conviction. It was said that the "se of the word "acquittal" by the learned Magistrate was inaccurate and that the real effect of his order was that the proceedings against Shantilal wore stopped.