Gujarat High Court
State Of Gujarat vs Bachubhai Naginbhai Shah And Ors. on 21 November, 1994
Equivalent citations: (1996) 2 GLR 643
Bench: D Karia
JUDGMENTD.G. Karia, J.
1. Mr. S.R. Divetia, learned Addl. Public Prosecutor, requested to convert this Special Criminal Application into Criminal Revision Application. Request granted.
2. The salient and substantial question of law that looms for determination may be stated as under:
Whether the offences under the Bombay Prohibition Act, 1949, extending imprisonment for a term of three years would be a summary triable case or warrant triable case, and what is the effect of the provisions of Section 167(5) of the Code of Criminal Procedure, 1973?
3. The points which are said to have arisen for determination and which have been formulated in the memo of this Criminal Revision Application are as under:
(1) Whether the offences enumerated above under the Bombay Prohibition Act, 1949, wherein the conviction and sentence prescribed is three years is a warrant triable or summons triable case?
(2) Whether in a warrant triable case, Section 167(5) of the Cr. P.C. is applicable?
(3) Whether Section 116 of the Bombay Prohibition Act and Chapter XXI of the Cr. Procedure Code, 1973 would be applicable?
4. The facts giving rise to the present revision application are in narrow compass and are not in dispute. Respondent Nos. 1 to 15 are alleged to have committed offences punishable under Sections 65(e), 66(1 )(b), 81 and 85(1)(3) of the Bombay Prohibition Act. At about 9-15 p.m. on July 17, 1982, respondent Nos. 1 to 14 have been alleged to have bought and consumed the intoxicant in contravention of the provisions of the Bombay Prohibition Act, or any rule, regulation or order made or of any licence, permit, pass or authorisation issued thereunder, at the cabin of respondent No. 15, who in contravention of the provisions of the Act and without any licence, pass or permit, sold the intoxicant to respondent Nos. 1 to 14. As is recorded by the learned Sessions Judge, the complaint is long and detailed one. The respondent Nos. 1 to 14 were arrested on July 17, 1982, whereas the respondent No. 15 was arrested on July 19, 1982. Thereafter, the charge-sheet was submitted on October 13, 1983.
5. The charge-sheet was thus submitted after the lapse of the period of one-year, two months and twenty-six days, after arrest of the respondents-accused.
The respondents, therefore, submitted the application Exh. 29 on June 7, 1984 contending, inter alia, that the offences alleged against the accused persons were triable as summary cases. The charge-sheet in respect of the offences alleged against the accused persons was not presented within a period of six months from the date on which the accused persons were arrested.
6. The accused persons, therefore, prayed to be discharged on the ground that the investigation was not completed within the period of six months from the date of their arrest nor the officer making the investigation sought extension of time in investigation into the offences and that there were no reasons to continue the investigation beyond the period of six months and no such order was passed by the learned Magistrate. The accused further stated that in the trial for the offences against them under the Bombay Prohibition Act, the Magistrate had to follow the procedure prescribed under the Code of Criminal Procedure for the trial of summary cases in which the appeal lies and pursuant to Section 262 of the Code of Criminal Procedure, the trial against the accused persons would be the trial of summons cases.
7. According to the accused persons, no cognizance of the offences against them has been taken. The accused persons thus sought to dismiss the complaint, discharging them for the offences alleged against them.
The learned Judicial Magistrate, First Class, Navsari, by his judgment and order dated July 11, 1984, disposed of the aforesaid application Exh. 29 holding that the offence under Section 65 of the Bombay Prohibition Act provides punishment to the extent of three years and as per the definition of Section 2(x) of the Code of Criminal Procedure, 1973, relating to the offence punishable with imprisonment with a term exceeding two years would be a warrant triable case. The learned Magistrate, therefore, came to the conclusion that the provisions of Section 167(5) of the Code will not be applicable to the facts of this case and the case against the accused persons was a warrant triable case. He, therefore, ordered to continue the proceedings of the case as the warrant triable case.
8. The respondents, being aggrieved by the aforesaid order of the learned Magistrate, preferred Criminal Revision Application No. 56 of 1984 before the Sessions Court, Valsad District at Navsari. The learned Additional Sessions Judge, Valsad District at Navsari, allowed the said revision application, by his judgment and order dated November 22, 1984, holding that the order passed by the learned Magistrate was illegal and perverse. The learned Judge, eventually, allowed the application Exh. 29 discharging all the accused persons.
9. In order to appreciate the rival contentions of the parties, it is necessary to scan the following provisions of law.
Section 116 of the Bombay Prohibition Act, 1949 runs as under:
116. Procedure to be followed by Magistrates, - In all trials for offences under this Act, the Magistrate shall follow the procedure prescribed in the Code of Criminal Procedure, 1898 (V of 1898) for the trial of summary cases in which an appeal lies.
The aforesaid provisions of Section 116 of the Bombay Prohibition Act provide about the procedure to be followed by the Magistrate in the trials for the offences under the Act. The Magistrate has to follow the procedure prescribed in the. Code of Criminal Procedure for the trial of summary cases in which an appeal lies.
10. Chapter XXI of the Code of Criminal Procedure, 1973 provides for summary trials. Section 260 of the said Chapter is as under:
260. Power to try summarily. - (1) Notwithstanding anything contained in this Code:
(a) any Chief Judicial Magistrate;
(b) any Metropolitan Magistrate;
(c) any Magistrate of the first class specially empowered in this behalf by the High Court, may, if he thinks fit, try in a summary way all or any of the following offences:
(i) offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years;
x x x x
(2) When in the course of a summary trial it appears to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined and proceed to rehear the case in manner provided in this Code.
(emphasis supplied)
Section 262 of the Code of Criminal Procedure runs as under:
262. Procedure for summary trials. - (1) In trials under this Chapter, the procedure specified in this Code for trial of summons case shall be followed except as hereinafter mentioned.
(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
11. It is clear on perusal of the aforesaid provisions of Sections 260 and 262 of the Code of Criminal Procedure, 1973 that the Magistrate has been given discretion to try all or any of the offences set out in the said section summarily, if he thinks fit. The term "if he thinks fit" occurring in aforesaid Section 260 contemplates that a case should not be tried summarily only because it is summarily triable. The question is left to the discretion of the Magistrate which is, of course, to be exercised judicially, having due care and with regard to the circumstances of each case. The allegations in the complaint may not be conclusive to decide whether a case is to be tried summarily or not. Therefore, the question is to be determined by the facts and circumstances of the case as well as by the evidence of the complainant. Thus, on interpretation of Section 260 of the Code of Criminal Procedure, a summary triable case cannot always be a summary triable case and it may be a warrant triable case, having regard to the facts and circumstances of the case providing extent of sentence. Sub-section (2) of Section 260 of the Code of Criminal Procedure enjoins upon the Magistrate to recall any witness in the course of a summary trial, if it appears to him that the nature of the case is such that it is undesirable to try it summarily. Thus, in the midst of the trial, even a summary case can be treated as a warrant case. In the instant case, the learned Magistrate has categorically concluded that the case was warrant triable case, having regard to the sentence prescribed for the offence under Section 65 of the Bombay Prohibition Act and that the provisions of Section 167(5) of the Code of Criminal Procedure were not applicable. It is, therefore, not understood as to how the learned Sessions Judge disturbed the discretion exercised by the learned Magistrate. The learned Sessions Judge has not assigned good or sound reasons for reversing the judgment of the learned Magistrate.
12. Section 262(2) of the Code of Criminal Procedure provides that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under Chapter 21 of the Code of Criminal Procedure. The words "any conviction under this Chapter" occurring in Section 262(2) would show that the said sub-section applies only in those cases which are tried summarily by reason of provisions contained in that Chapter. The question of sentence cannot be a matter of procedure. A provision in a statute prescribing sentence for any act imposes a liability or a penalty for that act and is, therefore, substantive provision of law and not one dealing with a matter of procedure. Section 116 of the Bombay Prohibition Act prescribes the procedure for the trial of cases arising under the Prohibition Act. Section 262(2) of the Code of Criminal Procedure will not, therefore, be applicable in such cases. As noticed above, Section 65 of the Bombay Prohibition Act prescribes minimum sentence of imprisonment exceeding three months. If it is held that the aforesaid provisions of Section 262(2) of the Code are applicable even when an accused is convicted for the offence under the Prohibition Act, prescribing sentence extending three months, then the Magistrate will not be in a position to impose even minimum sentence where the minimum sentence prescribed is more than three months' imprisonment. The provisions of the Code of Criminal Procedure enable a Magistrate to try a case in the ordinary manner if he feels that it is one in which a sentence exceeding three months should be imposed. However, that provisions cannot be resorted to by a Magistrate trying cases under the Prohibition Act; because under Section 116, all such cases are to be tried in a summary way.
13. The provisions of the Act prescribing minimum sentence exceeding three months will, therefore, be rendered nugatory, if it is accepted or held that Section 262(2) applies in such cases. In view of this position, only the procedure prescribed by the provisions laid down in Chapter XXI of the Code is to be followed in the trial of offences under the Prohibition Act, where sentence not exceeding three months is to be imposed.
Learned Counsel appearing for the respondents relied upon Sub-section (5) of Section 167 of the Code of Criminal Procedure. Section 167(5) reads as under:
167(5) If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of investigation beyond the period of six months is necessary.
In submission of the learned Counsel for the respondents the charge-sheet was not presented within a period of six months from the date of arrest of the respondents and as such the respondents-accused were entitled to be discharged and were rightly discharged by the learned Sessions Judge. I am afraid, the submission on behalf of the respondents cannot be accepted for the reasons that the provisions under Sub-section (5) of Section 167 of the Code of Criminal Procedure for stoppage of further investigation after the expiry of the period prescribed therein does not apply to warrant case. The learned Magistrate has categorically held that the case on hand was not a summons case but it was a warrant triable case, having regard to the sentence prescribed for the offence under Section 65 of the Bombay Prohibition Act.
14. In the case of Sureshbhai K. Desai v. State of Gujarat reported in 1983 Cri. LR 115, which was sought to be relied upon on behalf of the respondents, this Court [Coram: V.V. Bedarkar, J. (as he was then)], while dealing with Section 167(5) of the Code of Criminal Procedure, held that it was necessary for all the Magistrates in the State to see that police do not unnecessarily linger on in submission of charge-sheet beyond one year or six months. If they have not submitted the charge-sheet upto six months for summary triable cases, the Court may consider as to why the proceeding should not be stopped for not completing the investigation within a period of six months. Thereafter, the Court may hear the prosecution and decide the matter. It is necessary that the provisions of Section 167(5) of the Code are properly followed. It is true that in summons triable case, the investigation has to be concluded within a period of six months from the date of arrest of the accused persons in accordance with Section 167(5) of the Code. However, it would not determine whether a particular case is summons triable case or warrant triable case. That would depend upon a case relating to an offence punishable with death, imprisonment with life or imprisonment for a term exceeding two years or otherwise. In the facts of the present case, the aforesaid case of Sureshbhai K. Desai (supra) will not be applicable.
15. The Division Bench of the Bombay High Court consisting of Chainani, C.J. and Tarkunde, J. (as they were then) has held in case of Bandulal Balaprasad v. State reported in AIR 1962 Bombay 258, that offence under Section 65 of the Bombay Prohibition Act being punishable with an imprisonment extending upto three years has to be tried as a warrant case in view of Section 262, Cr. P.C. read with Section 116 of the Bombay Prohibition Act. The learned Sessions Judge tried to distinguish this case of Bandulal (supra) stating that the old Code of Criminal Procedure was repealed and the Code of Criminal Procedure, 1973 came into force with effect from April 4, 1974, and hence the ratio in the case of Bandulal (supra) would not be applicable in the facts of the present case. In my opinion, the approach adopted by the learned Sessions Judge is not correct, inasmuch as the trials for the offences under the Bombay Prohibition Act are to be conducted by following the procedure prescribed in the Code of Criminal Procedure for the trial of summary cases. As observed hereinabove, Chapter XXI of the Code of Criminal Procedure provides the procedure for summary trials. However, having regard to quantum of sentence, a case under offence of the Bombay Prohibition Act may be warrant triable case. Section 116 of the Bombay Prohibition Act provides to try the offences under the Act according to summary procedure. Chapter XXI deals with summary procedure. On true construction of Sections 260 and 262 of the Code, the case triable as summons case might become a warrant triable case, having regard to the sentence, prescribed for the offence under the said Act. In my opinion, therefore, the learned Sessions Judge, has not considered the above ruling of the Bombay High Court in its proper perspective. A case wherein an offence under Section 65 of the Act, providing sentence to extent of three years is alleged, has to be tried as warrant case.
16. In view of the above legal position, the offence under the Bombay Prohibition Act prescribing sentence exceeding three months would be a warrant triable case, as per the discretion of the learned Magistrate under Section 260 of the Code of Criminal Procedure, 1973. In the instant case, when the learned Magistrate has come to clear and categorical conclusion that the offence against the respondent-accused was warrant triable case and thus the discretion having been exercised properly and judicially, it was not open to the learned Sessions Judge to interfere with it. In a warrant triable case, provisions of Section 167(5) of the Code of Criminal Procedure, 1973 are not applicable.
17. In the result, this Revision Application is allowed. The impugned judgment and order of the learned Sessions Judge is quashed and set aside and that of the learned Magistrate is restored. Rule made absolute accordingly.
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