Bookmark
PDF
Share
CaseIQ

State Of Kerala v. Achutha Panicker

Kerala High Court

Mar 26, 1975

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

This appeal was filed by the State against the acquittal of the respondent, who had been the accused in Private Complaint C.C. No. 232 of 1973 instituted before the Chief Judicial Magistrate, Manjeri by the Drugs Inspector, Malappuram. The complaint alleged offences under Section 7 of the Essential Commodities Act, 1955 read with clauses 15(2) and 17 of the Drugs (Price Control) Order, 1970. The respondent was acquitted by the magistrate under Section 247 of the Code of Criminal Procedure, 1898 (the "old code") on the ground that the complainant was absent on July 15, 1974, the date when the case was posted for hearing.

The complaint was filed on 14-11-1973 and, because it was filed before the 1973 Code of Criminal Procedure came into force, the trial was to be governed by the provisions of the old code. No charge had been framed at the time of the magistrate's order; the proceedings were at the stage of inquiry.

Legal Issues Presented

Whether the acquittal under Section 247 of the old Code was legally maintainable in the facts of this case.
Whether the offences alleged (under Section 7 of the Essential Commodities Act) constituted a warrant case or a summons case.
If this is a warrant case, whether the only provision enabling discharge for absence of the complainant is Section 259 of the old Code and whether that provision applied.
Whether mandatory provisions of Section 242 of the old Code were observed (if the matter were treated as a summons case).
Whether the High Court could interfere with the magistrate's order by treating the matter as an appeal or by exercising revisional powers.
When, for the purposes of the old Code, the "trial" of an accused person in a warrant case is held to commence (i.e., the inquiry vs. trial distinction).

Arguments of the Parties

State / Learned State Prosecutor

The order of acquittal under Section 247 of the old Code is clearly illegal because Section 247 has no application to this case.
The offences alleged disclose offences under sub-section 1(a)(ii) of Section 7 of the Essential Commodities Act, punishable with imprisonment up to five years and fine; therefore this is a warrant case, not a summons case.
Because no charge had been framed and the proceedings were at the stage of inquiry, there was no question of acquittal at that stage.
For a warrant case the only section permitting discharge for absence of the complainant is Section 259 of the old Code (corresponding to Section 249 of the new Code), but Section 259 applies only to offences which may be lawfully compounded or are non-cognizable, which is not the situation here.
Even if the matter were treated as a summons case, mandatory provisions of Section 242 of the old Code (Section 251 of the new Code) were violated.
The court can treat the magistrate's purported acquittal as an appeal or, alternatively, interfere under its revisional jurisdiction; an appeal can, in a proper case, be treated as a revision (citing State v. Balaprasad).
On when a trial commences: the trial begins when the accused is called upon to plead to a charge; proceedings up to framing of charge are an inquiry and are distinct from the trial proper (supported by authorities cited in the opinion).

Respondent / Counsel for the Respondent (Sri V. M. Nayanar)

The respondent's counsel pointed out that by Act 30 of 1974 the Essential Commodities Act had been amended so that cases under that Act are to be tried summarily and could be treated as summons cases.
However, the amendment (Act 30 of 1974) was published on August 29, 1974 — after the date of the magistrate's acquittal — and it was not disputed that the case must be tried in accordance with the Code of 1898 (old code).
Reliance on the amendment to treat the case as a summons case was therefore untenable given the temporal application; Section 262 of the old Code prescribes that the procedure for summons-cases shall be followed in summons cases and the procedure for warrant-cases shall be followed in warrant cases.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Balaprasad, ILR 1954 Nag. 757	That an appeal, in a proper case, can be treated as a revision.	Cited to support the proposition that the High Court can treat the magistrate's acquittal as an appeal or otherwise exercise revisional powers to interfere with the order.
Kingam Savaranna v. State, A.I.R. 1957 Andhra Pradesh 472	Supports the distinction between "inquiry" and "trial" via discussion of definition of inquiry and its effect on the meaning of trial.	Used to support the court's analysis that inquiry is different from trial and that inquiry stops when trial begins.
Food Inspector v. Seetharam Rice & Oil Mills, 1974 KLT 685 (Full Bench)	Held that trial in a warrant case instituted otherwise than on police report commences only after framing of a charge.	Relied upon to conclude that proceedings before a magistrate in a warrant case under Chapter XXI are an inquiry until a charge is framed and become a trial only after charge framing.
State v. Ambaram, A.I.R. 1953 M.B. 1	Authority supporting that proceedings before framing of charge in warrant cases are preliminary (inquiry) rather than trial.	Cited among authorities to show that the trial of a warrant case commences after framing of charge.
Sriramulu v. Veerasalingam, ILR 38 Mad. 585	Authority on the distinction between inquiry and trial in warrant cases.	Used with other Madras decisions to support that the stage before framing of charge is an inquiry.
Palaniandy Goundan v. Emperor, ILR 32 Mad. 218	Authority concerning procedure under Chapter XXI and the inquiry/trial distinction.	Relied upon to support that trial commences post charge-framing in warrant cases.
Narayanaswami Naidu v. Emperor, ILR 32 Mad. 220	Authority concerning the procedural distinction between inquiry and trial.	Cited with other decisions to support the court's understanding of when a trial begins.
In re Pakkirisamy Pillai, A.I.R. 1962 Mad. 142	Veeraswamy J. held that the proceeding preceding an order of discharge under subsection (2) of s.251A is not a trial in the strict sense but is only in the nature of an inquiry.	Cited as persuasive authority for the proposition that pre-discharge proceedings under s.251A are not a strict trial.
Fakruddin v. State Police, A.I.R. 1962 Andhra Pradesh 236	Division Bench held that the charge framed under sub-section (3) of s.251A is the stage at which the trial of a warrant case commences; prior steps are preliminary.	Relied upon to support the view that trial commences upon framing of charge and earlier steps are preliminary inquiry.

Court's Reasoning and Analysis

The court analysed the legality of the magistrate's acquittal by applying statutory classification and procedural provisions of the old Code:

Nature of offences and classification: The complaint alleged sales at prices higher than prescribed and absence of a price list; the allegations prima facie disclosed offences under sub-section 1(a)(ii) of Section 7 of the Essential Commodities Act, which are punishable with imprisonment for a term which may extend to five years and fine. On that basis the court concluded the matter was a warrant case and not a summons case.
Applicability of Section 247: Because the offence is a warrant case, Section 247 of the old Code (which the magistrate invoked to acquit the accused) had no application. The magistrate's acquittal under Section 247 treated the matter as if it were a summons case and was therefore wrong and illegal.
Stage of proceedings: The court noted that no charge had been framed and the matter was at the inquiry stage; at that stage there was no question of acquittal. The court explained that the trial of an accused person commences when he is called upon to plead to a charge; proceedings up to framing of charge are an inquiry.
Discharge provisions for warrant cases: The court observed that in a warrant case the only section under which an accused can be discharged for absence of the complainant is Section 259 of the old Code. However, Section 259 is expressly confined to offences which may be lawfully compounded or are non-cognizable; since the present offences are neither, Section 259 did not apply.
Mandatory procedural safeguards: Even if, arguendo, the matter were treated as a summons case, the court found that the mandatory provisions of Section 242 of the old Code had been violated, rendering the order unlawful.
Authorities and textual construction: The court reviewed authorities and statutory provisions (including sections introduced by Act XXVI of 1955 and corresponding provisions in the new Code) to explain that the term "trial" in certain provisions must be construed with context, and that in warrant cases instituted otherwise than on police report the proceedings before framing of charge are inquiries. The court expressed agreement with the Madras and Andhra Pradesh high courts' views that the charge-framing stage is when trial commences in such warrant cases.
Temporal effect of legislative amendment: The respondent's counsel relied on an amendment (Act 30 of 1974) making certain offences triable summarily. The court noted that the amendment was published on August 29, 1974, which was after the acquittal order; the case must be tried in accordance with the old Code, and Section 262 of the old Code prescribes that warrant-case procedure must be followed for warrant cases.
Remedial jurisdiction: The State urged that the magistrate's purported acquittal could be treated as an appeal or be interfered with under revisional powers. The court referenced authority to show that appeal may be treated as revision in a proper case and that the High Court has power to interfere with impugned orders by revision where appropriate.

In sum, the court concluded the magistrate's order of acquittal was illegal because it treated a warrant case as a summons case and discharged the accused at the inquiry stage under an inapplicable provision.

Holding and Implications

Holding: The court set aside the magistrate's order of acquittal.

Core Ruling: THE ORDER OF ACQUITTAL IS SET ASIDE.

Implications and immediate consequences:

The acquittal granted by the Chief Judicial Magistrate is vacated.
The case is remitted ("sent back") for fresh disposal in accordance with law and in the light of the court's judgment (i.e., to be proceeded with as a warrant case under the old Code, with due regard to the distinction between inquiry and trial and the correct procedural provisions).
The opinion does not assert or announce any broader change of law beyond the application of the existing statutory scheme and the authorities relied upon; the direct effect is the setting aside of the acquittal and remand for fresh disposal.

Show all summary ...

1. This is an appeal filed by the state against acquittal of the respondent who was the accused in a private complaint c. C. No. 232 of 1973, Instituted before the chief judicial magistrate, Manjeri, By the drugs inspector, Malappuram, Alleging commission of offences punishable under s. 7 of the essential commodities act, 1955 read with clause. 15 (2) and 17 of the drugs (price control) order, 1970. The respondent was acquitted under s. 247 of the code of criminal procedure, 1898, Hereinafter called the old code, On the ground that the complainant was absent on july 15,1974, The date on which the case was posted for bearing.

2. The learned state prosecutor submitted that the order of acquittal is clearly illegal, As s. 247 of the old code has absolutely no application to the facts of this case which is a warrant case governed by the provisions relating to warrant cases.

3. The drugs (price control) order, 1970 was said to have been passed in exercise of the powers conferred under s. 3 of the essential commodities act, 1955. The accusations against the respondent in the complaint are that, On the various dates mentioned therein, He, The proprietor of rema drugs house, Manjeri sold certain types of medicines for prices higher than the prescribed fates and that there was no price list of medicines exhibited or displayed at his place of business. These allegations, Prima facie disclose offences punishable under sub - section 1 (a) (ii) of s. 7 of the essential commodities act. This aspect was not disputed before me. The offences alleged to have been committed by the respondent are therefore punishable with imprisonment for a term which may extend to five years and also fine. This is therefore a warrant case and not a summons case as misconceived by the court below.

4. The complaint in this case was filed on 14 111973 and the trial of the case was to be governed by the provisions of the old code, And the procedure to be followed in the trial was the procedure prescribed for trial of warrant cases. The acquittal of the respondent under s. 247 of the old code, As if this was a summons case, Is therefore wrong and illegal the ground on which the acquittal was ordered was the absence of the complainant on the date on which the case was posted for hearing. No charge had been framed against the respondent; the trial had not yet been started and it was at the stage of inquiry. Therefore there is no question of acquittal arising in the case at this stage. Being a warrant case, The only section under which the accused can be discharged for the absence of the complainant is s. 259 of the old code. (s. 249 of the code of criminal procedure, 1973, Hereinafter called the new code.) this section expressly states that the powers thereunder can be exercised only in cases of offences, Which may be lawfully compounded or are noncognizable. It is not disputed that the offences alleged against the respondent are neither compoundable nor noncognizable. Therefore s. 259 of the old code has no application to the case. This apart the records available in the case disclose that, Even if it is assumed for the sake of argument, That this is a summons case, The mandatory provisions of s. 242 of the old code (s. 251 of the new code) have been violated. In either case, The order, Whether it is in effect one of discharge or not, Is clearly illegal and is liable to be set aside.

5. The learned state prosecutor submitted that, As the learned magistrate purported to acquit the accused, This can be treated as an appeal. Even if s. 417 of the old code is not in terms attracted, The matter having been brought to the notice, This court has power to interfere with the order impugned in exercise of its revisional powers. An appeal, In a proper case, Can be treated as a revision (see the state v. Balaprasad, Ilr. 1954 nag. 757). A question of interest, When does a trial commence, Arises in this regard. The trial of an accused person commences when he is called upon to plead to a charge and the proceeding upto the point of framing a charge is in the nature of an inquiry. There is real distinction between a trial and an inquiry. The final order in a trial is either a conviction of an acquittal and this order, So long as it is not set aside, Would be a bar to subsequent proceedings for the same offence. An accused person is entitled to raise the plea of autrefois convict or acquit, As the case may be. In the case or an inquiry, The final order of discharge would not be a bar to fresh proceedings. The various sections in the code of criminal procedure indicate that the framers of the code intended to maintain a distinction between "inquiry" and "trial". The term "trial" was defined in the code of 1872 but this definition was dropped in the code of 1882. Though trial has not been defined either in the old code or in the new code, Both contain the definition of inquiry. (see s. 4 (k) of the old and the corresponding s. 2 (g) of the new codes.) s. 2 (g) is practically a reproduction of s. 4 (k) ; the only change is that the word "includes" in the latter has been substituted by the word "means". The definition of inquiry impliedly defines trial and this definition puts it beyond doubt that an inquiry is different from trial and that inquiry stops when the trial begins. (see kingam savaranna v. State reported in a. I. R. 1957 andhra pradesh 472). S. 252 to 259 of the old code and s. 244 to 249 of the new code are the relevant sections which apply to warrant cases instituted otherwise than on police report. Regarding the procedure in this respect, No material or far reaching changes have been made in the new cods. It is quite clear from the various provisions in the sections referred to above, That the trial in a warrant case (instituted otherwise than on a police report, Commences only after a charge is framed. In food inspector v. Seetharam rice w oil mills (1974 klt 685) a full bench of this court, While construing the word 'trial' in s. 20a of the prevention of food adulteration act observed that the trial in a warrant case (instituted otherwise than on police report) commences only after framing of a charge against the accused. The proceeding before a magistrate in a warrant case (instituted otherwise than on a police report) under chapter xxi of the old code is only an inquiry until a charge is framed and it becomes a trial only after a charge is framed. (vide state v. Ambaram: a. I. R. 1953 m. B. 1; sriramulu v. Veerasalingam: i. L. R. 38 mad. 585; palaniandy goundan v. Emperor: i. L. R. 32 mad. 218 and narayanaswami naidu v. Emperor: i. L. R. 32 mad. 220). In the case of a summons case, The trial starts as soon as the particulars of the offence, Which take the place of a charge, Are stated to the accused as enjoined under s. 242 of the old code s. 251 of the new code. By act xxvi of 1955, The code of 1898 was amended and a new section, S. 251a in chapter xxi was introduced. The corresponding sections in the new code are s. 238 to 243 and 248. These sections prescribed the procedure to be followed in the trial of warrant cases instituted on police report. The material difference in procedure brought about by this amendment is that, Unlike in a case instituted otherwise than on police report, No evidence is recorded before a charge is. Framed. The word'trial' used in s. 251a (1) of the old code (s. 238 of the new code) must be considered and construed with regard to the particular context in which it is used and with regard to the scheme and purpose of the other provisions governing the matter. Sub - section (3) of s. 251as. 240 (1) states that, If the magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable as a warrant case and if he i competent to try and adequately punish the accused, He shall frame a charge. The charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty or claims to be tried (sec sub - section (4) of s. 251a - s. 240 (2)). If the accused pleads guilty, The magistrate may in his discretion convict the accused thereon. If he claims to be tried, A date has to be fixed for the examination of witnesses. On the conclusion of the trial, The accused is either convicted or acquitted. In substance, The nature and scope of the procedure laid down by sub - sections (1) and (2) of s. 251a is different and distinct from the procedure prescribed by sub - sections (3) to (13) of the same section. While an order of discharge passed under s. 251a (2) of the old code is revisable under s. 436 of that code, An order of discharge under s. 239 of the new code can be interfered in revision under s. 398 of the same code it is highly significant to note that s. 436 and 398 mentioned above deal only with the power to order inquiry and under these sections the high court or the sessions judge is empowered in revision only to pass an order directing further inquiry into not retrial of the case of an accused who has been discharged. All these unmistakably indicate that the proceeding upto the stage of an order of discharge under s. 251a (2) s. 239 does not partake the nature of a trial. On a careful consideration of all the sub - sections of s. 251a and s. 238 to 243 and 248 of the new code and also the context in which the term'trial' in s. 25a (1) 238 is used it can be reasonably concluded that the meaning intended by this term was not trial in the limited or strict sense. The word appears to have been used in a very general and wide sense. Interpreting the word 'trial' occurring in s. 251a (1), Veeraswamy j., As he then was, Held, In in re pakkirisamy pillai reported in air 1962 mad. 142, That the proceeding preceding an order of discharge under subsection (2) of s. 251a is not a trial in the strict sense but is only in the nature of an inquiry. A division bench of the high court of andhra pradesh in fakruddin v. State police, Reported in air. 1962 andhra pradesh 236, Held that the charge framed under sub - section (3) s. 251a when the magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under chapter xxi is the stags at which the trial of a warrant case commences and till then the procedure concerns the preliminary steps. I am in respectful agreement with these views of the high courts of madras and andhra pradesh.

6. Sri v. M. Nayanar, Counsel for the respondent, Pointed out that by act 30 of 1974, The essential commodities act was amended and by virtue of this amendment the cases coming under this act are to be tried summarily and if so, This can be tried as a summons case. The amendment act was passed and published in the gazette of india dated august 29,1974, Long after the order of acquittal in this case. It is not disputed that the case on hand has to be tried in accordance with the provisions of the code of 1898. If that be so, S. 262 of the old code clearly states that in trials under chapter xxi 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. Therefore the contention that this was a summons case and the acquittal is therefore proper has no merit.

in the result the order of acquittal is set aside and the case is sent back for disposal afresh in accordance with law and in the light of this judgment.