SIRI LALL RAM KANSHI RAM Vs. CROWN

JUDGEMENT

(1.) IT is intended by this judgment to dispose of forty-one several revision petitions N0s. 231 to 246 of 19:16, 304 to 319 of 1949, 382 to 383 of 1949 and No. 419 of 1949. Bach of the petitioners was sent up for trial for having exported foodgrains from the Province of East Punjab to the Province of Delhi in contravention of the Foodgrains (Movement Control) Order, 1946, and thereby having committed an offence Under Section 7, Essential Supplies (Temporary Powers) Act (Act XXIV [24] of 1946 ). Each of the petitioners was tried summarily under chap. XXH, Criminal P. C. and was convicted by the trying Magistrate and sentenced to rigorous imprisonment for three months, the food-grains with respect to which the offence was committed being forfeited to the Crown, Each of the petitioners went to on appeal but the learned Additional Sessions Judge upheld the conviction but in some cases reduced the sentence to two months rigorous imprisonment, the order of forfeiture being maintained in every case. The petitioners have now come up in revision to this Court.

(2.) LEARNED Counsel appearing on behalf of the petitioners have raised certain objections to the legality of the conviction of their respective clients. In the first place, it is pointed out that; the cases although tried summarily were really warrant cases and, therefore, a formal charge should have been framed indicating precisely the offence which the petitioners were alleged to have committed. My attention has been drawn to Section 262 of the Code which provides that except as thereinafter mentioned the procedure prescribed for summons-cases should be followed in summons-cages, and the procedure prescribed for warrant-cages should be followed in warrant- cases. This, it ia submitted, is the general rule. Reference ia then made to Section 263 which constitutes an exception. Under that section in cases where no appeal lies, the Magistrate need not record the evidence of the witnesses or frame a formal charge, but must enter certain particulars referred to in els (a) to (j) of that section. It is pointed out that this section specifically dispenses with the necessity of framing a formal charge. learned Counsel then go on to Section 261 which applies to every case tried summarily by a Magistrate in which an appeal lies, and point out that there is no express dispensation of the necessity of framing a formal charge such as there ia in Section 203, This omission to frame a formal charge is said to have vitiated the whole trial. Reliance is placed in support of this argument on the case of Natabar Khan v. Emperor 27 C. W. N. 923 : AIR (11) 1924 Cal. 63 : 25 Cr. L. J. 1270 and the case of Amaresh Chandra v. Emperor AIR (35) 1948 Cal. 110 : 48 Cr. L. J. 632. In my judgment, there is no Bubstanee in this contention. It will be noticed that Section 263 which specifioally dispenses with the necessity of framing a formal charge requires the Magistrate to enter certain particulars. One of those particulars, namely, Clause (f) refers to, "the offence complained of and the offence (if any) proved, and in cases coming under Clause (d),clause (e), Clause (f) or Clause (g) of Sub-section (i) of Section 260 the value of the property in respect of which the offence has been committed," This indicates that the accused i3 to be apprised of the offence complained of against him. This section, however, only applies to cases tried summarily where no appeal lies. Section 261 applies to cases tried, summarily in which an appeal lies. Here the Magistrate is enjoined before passing sentence to record judgment embodying the substance of the evidence and also the particulars mentioned in Section 563. The argument is that this section does not specifically dispense with the necessity of framing a formal charge, This section equally does not dispense with the necessity of recording the evidence which has got to be recorded under the Code in warrantcase. If the argument as to the necessity of framing a formal charge is to prevail, then the necessity of recording the evidence must also stand on the same footing, foe that is also not specifically dispensed with. Subsection (1), however, positively requires the Court to record judgment embodying the substance of the evidence only and also the particulars mentioned in Section 263. If the Court were to record the evidence as in an ordinary warrant-case then recording judgment embodying the substance of the evidence will be a mere duplication. The requirement that the judgment should embody the substance of the evidence appears to me to be a substitute for recording the evidence as ordinarily requited in a warrant case. Likewise, the requirement of Section 264 that the Court in a warrant case tried summarily must also record the particulars mentioned in Section 263 appears to me to be a substitute for the necessity of framing a formal charge, for, as I have said, the particulars required to be act out under Clause (f) of Section 563 to which I have already referred, serve the purpose of a formal charge. Sub-section (a) of Section 261 to my mind clinches the matter. This Sub-section provides that such judgment shall be the only record in cases coming within this section. Therefore, neither the record of the evidence nor the formal charge will form any party of the record of a case coming within Section 261. In my judgment, the language employed in Section 261 impliedly excludes the necessity for recording evidence or the framing of a formal charge. I find ample support for this view from the decision in the case of Madhab Chandra v. Emperort 53 Cal. 738 : AIR (13) 1926 Cal. 1202 : 27 Cr. L. J. 1295 where the correctness of the ruling in Natabar Khan v. Emperor 27 C. W. N. 923 : AIR (11) 1924 Cal. 63 : 25 Cr. L. J. 1370 supra was doubted I find myself in agreement with the views expressed by Duval J. with whiob Suhrawardy J. agreod. This view is also in accord with the decision of Page C. J. , in King Emperor v. Maung Posaw 13 Rang. 225 : AIR (22) 1935 Bang. 106 : 36 Cr. L. J. 892 To the same effect is the decision of Harrison J, in Emperor v. Salig Bam 7 Lah. 803 : AIR (13) 1926 Lah. 301 : 27 Cr. L. J. 633 where the decision in Natabar Khan v. The King-Emperor 27 C. W. N. 923 : AIR (11) 1924 Cal. 63 : 25 Cr. L. J. 1270 supra was definitely dissented from. the case of Amaresh Chandra v. Emperor AIR (35) 1948 Cal. 110 : 48 Cr. L. J. 632 relied on by learned Counsel for the petitioners does not appear to me to be helpful because, apart from the bare statement that it is necessary that the accused should be charged, there is no reason given in thi3 decision in support of that statement. In any case, the recording of the particulars under Clause (f) of Section 263 which is also necessary Under Section 264, clearly informs the accused of the charge against him For reasons stated above, I do not find myself in agreement with the views expressed in the two Calcutta cases relied on by the learned Counsel for the petitioners and I prefer to allow the later Calcutta decision and the Rangoon and Lahore decisions I have already mentioned. In any case, the failure to frame a formal charge has not, in my judgment, Caused any hardship or failure of justice because I find from the register and the judgment that the accused were fully aware of the charge, namely, that they were exporting food grains from the Province of East Punjab to the Province of Delhi. In fact, the petitioners adduced evidence to show that they were not really ex-porting food grains into the Province of Delhi but were carrying the food grains from one part of the Province of East Punjab to Bahadurgarh Mandi which is also in the Province of Eaat Punjab. In these circumstances the failure to frame a formal charge even if it were necessary is easily cured Under Section 685 or Section 587, Criminal P. C.

(3.) THE second point urged by learned Counsel was that the judgment of the lower Court shows that the offence committed by the petitioners was not actually the finished offence of export but constituted merely an attempt to export, because they were apprehended before they actually crossed the border. I do not think there is any substance in this argument, because the attempt to export is equally an offence Under Section 8, Essential Supplies (Temporary Powers) Act, and, if necessary, I would be prepared to convert the conviction from one Under Section 7 to one Under Section 8 of that Act. Mr. Chona appearing for some of the petitioners further stated that the act of his clients did not constitute even an attempt to export although it may amount to a preparation on their part in commit an offence. This point has been fully dealt with by Khosla and Kapur JJ. , in the recent case of Bam Pershad V. Crown (Cri. Eevn. No. 510 of 1948 ). On the facts appearing from the judgments which embody the substance of the evidence I am quite clear in my mind that the conduct of the petitioners amounts to mote than a mere preparation and they are guilty of an offence of attempting to export, if not of the offence of actual exporting.