GHISIA Vs. STATE

JUDGEMENT

(1.) THESE are two criminal matters which raise a common question of law, and we propose to dispose of them by a single judgment. The question for determination is whether, the trial of a warrant case, which is instituted otherwise than on a police report, under Section 251-A of the Code of Criminal Procedure, while it should have been tried in accordance with the procedure laid down in Section 252 cr. P. C. and the next following sections amounts to an illegality which would vitiate the trial. It is necessary to state just a few facts of the two cases which have been referred to us.

(2.) IN Criminal Revision No. 28 of 1958, the accused Ghisia, Balu and Mangia were convicted by the Special Magistrate, Jaipur under Section 54 (a) of the Rajasthan excise Act (No. II) of 1950 (hereinafter referred to as the Excise Act) for distillation of illicit liquor, and each of them was sentenced to three months' rigorous imprisonment. The case was challaned in the court of the Magistrate by the Excise Inspector. The accused were given copies of the relevant documents under Section 173 of the Code of Criminal Procedure and a charge was framed against them and they were tried under the procedure laid down in Section 251-A of the Code. They disclaimed all connection with the crime but were eventually convicted and sentenced as stated above. They went in appeal to the Sessions Judge Jaipur, district Jaipur, who dismissed the appeal. Thereupon the accused filed Criminal revi- sion No. 28 of 1958 in this Court, which, in the first instance, came before a learned Single Judge. The only point raised before the learned Judge was that the Magistrate was wrong in adopting the procedure under Section 251-A in this case as it was not instituted on a police report but was taken cognizance of on a complaint filed by the Excise inspector and therefore the conviction of the accused was bad and must be quashed. On behalf of the accused, reliance was placed on two Single Judge decisions of this Court, namely, State v. Bhagwana, ILR (1958) 8 Raj 525 : (AIR 1959 Raj 248) and Chhitar Singh v. State, ILR (1958) 8 Raj 1206. In both these cases, it was held that a Magistrate taking cognizance of a case on the report of an Excise Officer cannot be deemed to have taken cognizance of it as on a police report. As the accused had, however, been tried in both these cases under the procedure applicable to a case instituted On a police report under section 251-A Cr. P. C. , the conviction was quashed in one case by this Court and in the other by the Sessions Judge and was upheld by this Court, and the cases were sent back for re-trial in accordance with the procedure laid down under sections 232 to 250 Cr. P. C. It was contended before the learned Single Judge that these cases required reconsideration by a larger Bench as the trial thereof could not be held to have been vitiated in the absence of prejudice, and no prejudice was or could have possibly been caused to the accused on account of the adoption of the procedure under Section 251-A instead of that under Section 252 Cr. P. C. , and the next following sections.

(3.) IN the other case, namely, Criminal Revision No. 191 of 1958 before us the accused Mahendra Singh was convicted under Section 2 of the Opium Act (No. 1)of 1878 (hereinafter referred to as the Opium Act) for possession of a few seers of opium by a Sub-Divisional Magistrate, Karanpur, and the accused was sentenced to one month's rigorous, imprisonment and a fine of Rs. 500/- and in default to further rigorous imprisonment for six months. In this case also the accused was challaned by the Excise Inspector. He pleaded not guilty and the trial of the case was held by the Magistrate in accordance with the procedure prescribed under Section 251-A. The accused went in appeal to the sessions Judge, Ganganagar, who upheld the conviction and sentence. Consequently the accused preferred the present revision in this Court which came before the same learned Single Judge. The same contention as in the first case was raised before the learned Judge, namely, that the procedure followed by the Magistrate in the trial of this case was illegal and was sufficient to vitiate the trial. The learned Single Judge, therefore, ordered that this revision be linked up with the aforesaid revision. This is how both these cases have come up before us.