SUHAS RATNAKAR MOREY v. DHANRAJ TULSHIRAM KHAPARDE

2. By an order dated 23/02/2022, while issuing notice, the contention advanced by Mr. Naik, learned Counsel for the petitioner in this regard, have been summarized as under :

(A) In a case of a penalty under Section 27(1) of the Consumer Protection Act, 1986, as the State Commission under Section 27(2) of the said Act has been conferred with the power of a Judicial Magistrate, First Class for trial of offence under the said Act, and the State Commission shall be deemed to be a Judicial Magistrate, First Class for the purpose of the Cr.P.C., by virtue of Section 27(3) of the said Act, all offences under the said Act of 1986, are to be tried summarily.

(B) In view of Section 27(2) & (3) of the said Act, the offences which are punishable under Section 27(1) of the said Act shall have to be tried in a summary manner, as contemplated by Section 260 of the Cr.P.C., and Section 262(1) of Cr.P.C. directs that the procedure specified in the Code for the trial of summons cases shall be followed for a summery trial under Section 260 of Cr.P.C., except as otherwise indicated.

(C) The trial of summons cases by the Magistrate is covered in Chapter XX of the Cr.P.C. and Section 254 of Cr.P.C. indicates that if

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conviction is not there under Section 252 or 253, on account of the accused having not pleaded guilty, the procedure as prescribed therein shall have to be followed, indicating that the Magistrate shall have to proceed to hear the prosecution and take all evidence as may be produced in support of the prosecution and also to hear the accused and take all evidence as he produces in his defence.

(D) This requirement of Section 254(1) of Cr.P.C. has not been followed by the learned State Commission while deciding an offence under Section 27(1) of the Consumer Protection Act and straight away affidavits have been directed to be filed by the accused, which is in total contradiction to the requirement of Section 254 r/w Section 260 of Cr.P.C. and Section 27(3) of the Consumer Protection Act."

3. It is in continuation of the above, it is contended by Mr. Naik, learned Counsel for the petitioner that the procedure followed by the learned State Commission in conducting the matters under Section 27 of the C.P. Act, 1986, would indicate that there is absolute breach of the requirements of law, inasmuch as the learned State Commission by refusing to record the evidence of the complainant, permit cross-examination and so also permit leading of defence evidence, has violated the mandate of Section 27 (1) and (2) of the

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C.P. Act, 1986 as well as Sections 260, 262 and 254 of the Cr.P.C. This being so, it is contended that the entire procedure adopted by the learned State Commission in conducting the proceedings under Section 27 of the C.P. Act, 1986, being in contravention to the above provisions, was not sustainable and was liable to be quashed and set aside and the impugned orders were also likely to be rendered with the same fate.

4. It is also contended that while deciding the liability of the petitioner on the basis of the order suffered by him by the State Commission vis-a-vis the prosecution launched against him under Section 27 of the C.P. Act, 1986, what was material was to render a finding that such default was wilful and deliberate on part of the petitioner and it is only upon such finding being rendered after following the due procedure, as contemplated by Section 254 of Cr.P.C., that any conviction could be upheld.

4.1. Reliance is placed upon State of Karnataka Vs. Vishwabharathi House Building Coop. Society and others, (2003) 2 SCC 412 (para 58) in which the provisions of Section 27 of the C.P. Act, 1986 have been held to be akin to Order XXXIX Rule 2-A and Order XXI Rule 37 of C.P.C.

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4.2. On Vasant Manga Mahajan and others Vs. Baburao Bhikanna Naidu and another, 1979 CRI.L.J. 526, which holds that summons case under Section 254 of Cr.P.C., cannot be decided merely on the basis of affidavits and the Magistrate is required to proceed to hear the prosecution and take the evidence, as may be produced in support of the prosecution and also hear the accused and take all such evidence as he produces in his defence.

4.3. Upon Jolly George Varghese and another Vs. The Bank of Cochin, (1980) 2 SCC 360 (paras 8 to 11), which holds that a person cannot be cast in prison because of his poverty and to do this, there has to be a finding recorded that the non-payment was wilful on his part, in spite of sufficient means, in light of the language of Order XXI Rule 37 of C.P.C., and the right of a citizen under Article 21 of the Constitution which require minimal fairness to be there.

4.4. On Sanjeev Moses Davidson Vs. Central Jail No.2 Tihar, New Delhi, ILR (2003) II Delhi 320 (para 26 to 33), wherein in the context of provision of Section 27 of the C.P. Act, 1986, the learned Division Bench of Delhi high Court held that the liability fastened by the State Commission cannot be a ground to incarcerate a person unless investigation is done regarding the current financial position of the party suffering the order and only in case a finding is rendered

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that such default was wilful, with a malafide intention in spite of the person possessing sufficient means to pay that the further option of incarceration would be permissible. He, therefore, contends that the impugned orders be quashed and set aside and the learned State Commission be directed to comply with the procedure, as required by law in the matter of conducting proceedings under Section 27 of the C.P. Act, 1986.

5. Mr. Awode, learned Counsel for the respondent, at the outset submits, that the petition is liable to be dismissed on account of an alternate remedy of appeal before the National Commission, for which he places reliance upon Cicily Kallarackal Vs. Vehicle Factory, (2012) 8 SCC 524. He, therefore, submits that in light of what has been held in Cicily Kallarackal (supra) the present petition ought not to be entertained.

6. The factual position which leads to the filing of the present petition is as under :

6.1. By an order, dated 21/10/2016, the learned Consumer Forum partly allowed the complaint filed by the present respondent/ complainant therein by the following order :

"i. The complaint is partly allowed.

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ii. The opposite party shall refund to the complainant Rs.55.00 Lacs with interest @ 9% p.a. from the date of complaint i.e. from 27.11.2015 till its realisation by the complainant.

iii. The opposite party shall also pay compensation of Rs.5.00 Lac to the complainant for physical & mental harassment and cost of Rs.10,000/-

iv. Copy of the order be furnished to both parties free of cost."

6.2. Since there was no compliance, an Execution Application E.A. No.17/2017/3 came to be filed by the present respondent under Section 27 of the C.P. Act, 1986, in which, as the petitioner, had failed to attend, non-bailable warrants were issued, consequent to which, on the petitioner approaching and requesting for bail, the petitioner was released on bail. On 06/01/2021 when the petitioner was on bail, considering the language of Section 27 (2) and (3) of the C.P. Act, 1986, the State Commission recorded a plea of the petitioner, in which the petitioner pleaded not guilty. Instead of permitting the course of action, as was required to be followed in light of the relevant provisions of the Code of Criminal Procedure (for short "Cr.P.C."), the State Commission on 06/01/2021 itself put the petitioner in magisterial custody by cancelling his bail for non- compliance of the order dated 21/10/2016 for a long period.

6.3. Various attempts by the petitioner to secure bail on

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13/01/2021, 03/05/2021 and 13/07/2021, came to be rejected by the learned State Commission. The petitioner ultimately was forced to approach this Court by way of Criminal Writ Petition No.803/2021, in which vide order dated 23/12/2021, this Court was pleased to allow the petition and all the orders, which rejected the application for bail were quashed and set aside and the State Commission was directed to pass appropriate orders of bail by imposing suitable conditions, within three working days from the receipt of the said order, consequent to which the petitioner is on bail. However, what is material to note are certain observations made therein specifically in paras 29 and 30, which are as under :

"29. Learned Counsel for the petitioner has submitted that the procedure adopted by the State Commission is wholly unjustifiable. Before adjudicating the complaint under Section 27 of the Act, the State Commission has ventured into taking the petitioner in custody. It is submitted that a summary trial is contemplated under Section 27 of the Act for non-compliance of the order. No sooner the petitioner pleaded not guilty, the State Commission without proceedings with the trial, took him into the custody which is violative of right to liberty. Learned Counsel for the petitioner submitted that the proceeding under Section 27 is akin to the execution of money decree. The issue to be decided in summary trial is to see whether the petitioner has made willful disobedience of the order. In order to substantiate said contention, the petitioner relied on the decision of the Supreme Court in case of State of Karnataka vs. Vishwabharathi House Building Coop. Society and ors. (2003) 2 SCC 412 wherein it is expressed that (para 58), the provisions of Section 27 of the Act is akin to Order XXXIX Rule 2-A of the Code of Civil Procedure or provision of the

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Contempt of Courts Act or Section 51 read with Order XXI Rule 37 of the Code of Civil Procedure. Moreover, by relying on the decision of the Supreme Court in case of Jolly George Varghese and anr. vs. The Bank of Cochin (1980) 2 SCC 360, it is argued that unless there is a willful failure to pay in spite of sufficient means, to cast a person in prison violates Article 21 of the Constitution of India. Besides that, the petitioner also relied on the decision of Arnab Manoranjan Goswami vs. State of Maharashtra and ors. (2021) 2 SCC 427 to contend that while exercising inherent power under Article 226 read with 482 of the Code of Criminal Procedure, this Court can exercise its jurisdiction to grant interim bail.

30. Sub-clause(3) to Section 27 of the Act states that all the offences under the Act may be tried summarily by the appropriate Forum. It means that a summary trial is contemplated under Section 27 of the Act. The State Commission has recorded a plea and when the petitioner pleaded not guilty, he was taken into the custody. It needs to be noted that the State Commission after considering past record and particularly non-compliance of order took him into custody by cancelling the bail. It prominently emerges that the State Commission has not cancelled the bail of the petitioner on the ground of violation of bail condition, but on the ground that he has pleaded not guilty and there is non-compliance of the order."

6.4. The petitioner while in magisterial custody itself had filed an application dated 31/01/2022 before the State Commission and requested for issuance of directions to the complainant to lead evidence (pg.67). This application, however, came to be rejected by the State Commission by an order dated 27/01/2022, though it was observed therein that under Section 27 of the C.P. Act, 1986, the execution proceedings are to be conducted in a summary manner. It

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was further observed in the said order that the matter was already fixed for evidence of the petitioner and in spite of opportunity, no evidence was forthcoming and considering that the petitioner was in jail at that point of time, the application was rejected and the matter was fixed for final arguments with a direction to the Superintendent, Central prison Nagpur to produce the petitioner by virtual mode on 10/02/2022.

6.5. On 10/02/2022 an application came to be filed on behalf of the petitioner seeking permission to cross-examine the complainant and so also an application came to be filed by the petitioner for recall of the no-evidence order dated 27/01/2022. The learned State Commission, however, by the order dated 10/02/2022 though again observed that the proceedings under the C.P. Act, 1986, were summary in nature and considering that the evidence-affidavit was placed on record with the application, permitted it to be taken on record at a cost of Rs.20,000/- and posted the matter for final arguments by directing the parties to file the written notes of arguments so that the matter can be finally heard on 25/02/2022. It is these orders dated 27/01/2022 and 10/02/2022, which are questioned in the petition and so also the manner in which the proceedings under Section 27 of the C.P. Act, 1986, have been conducted by the learned State Commission.

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7. Though the zeal of the learned State Commission to see that its order is complied with is commendable, however, such zeal cannot permit the learned State Commission to give a total go by to the law and procedure applicable, which appears to be the position in the instant matter, considering the above position, where the petitioner has been put behind bars for near about a period of more than a year without even the learned State Commission canceling the bail granted to him, which cancellation, could only be on account of the violation of the condition on which he was released and not for any other reason as the trial of the offence under Section 27(1) of the C.P. Act, 1986, was, yet to begin.

8. Insofar as the contention of availability of alternate remedy, raised by Mr. Awode, learned Counsel for the respondent is concerned, relying upon Cicily Kallarackal (supra) wherein it has been held that since Section 27 A (2) (c) of the C.P. Act, 1986 provides for an appeal in respect of an order made under Section 27 of the C.P. Act, 1986 to the National Commission, a writ petition ought not to be entertained by this Court, there is no doubt that in a given case, a person approaching the High Court by directly bypassing the alternate remedy available ought to be relegated to the appellate remedy, which is statutorily provided. That however, is not an absolute in all given cases, as the existence of the alternate

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remedy, does not preclude this Court from exercising its jurisdiction under Article 226 of the Constitution of India in appropriate cases where it finds, that the jurisdiction needs to be so exercised, though such discretion has to be sparingly exercised. In the background of what has been stated above, that the State Commission has totally violated the procedure for conducting the proceedings under Section 27 of the C.P. Act, 1986, which will be adverted to hereinafter and the further fact that the petitioner has been incarcerated for nearly a period of one year and one month without even canceling his bail and without there being a finding that he was guilty of a default, in my considered opinion, this is a fit case to be entertained in this Court's jurisdiction under Article 226 of the Constitution of India, as the manner in which the proceedings under Section 27 of the C.P. Act, 1986, are being conducted by the District Forums and State Commissions is a matter of concern, and has a wider ramification, in view of which the plea, of an alternate remedy, is therefore rejected.

9. The present petition raises an interesting issue inasmuch as, the scope and ambit of the powers of the Consumer Forum/Commission, under Section 27 (2) and (3) of the Consumer Protection Act, 1986, (for short, "the C.P. Act, 1986"), which is pari materia to Section 72 of the Consumer Protection Act, 2019 (for short, "the C.P. Act, 2019") except for certain differences as indicated

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hereinafter, is in question. For the sake of ready reference Section 27 of the C.P. Act, 1986 and section 72 of the C.P. Act, 2019 are reproduced hereunder :

order .-

Where a trader or a person against (1) Whoever fails to comply with

whom a complaint is made or the any order made by the District

complainant fails or omits to comply Commission or the State

with any order made by the District Commission or the National

Forum, the State commission or the Commission, as the case may be,

National Commission, as the case shall be punishable with

may be, such trader or person or imprisonment for a term which shall

complainant shall be punishable not be less than one month, but

with imprisonment for a term which which may extend to three years, or

shall not be less than one month but with fine, which shall not be less

which may extend to three years, or than twenty five thousand rupees,

with fine which shall not be less but which may extend to one lakh

than two thousand rupees but rupees, or with both.

which may extend to ten thousand

rupees, or with both :

(2)Notwithstanding anything (2) Notwithstanding anything

contained in the Code of Criminal contained in the Code of Criminal

Procedure, 1973, the District Forum Procedure, 1973 (2 of 1974), the

or the State Commission or the District Commission, the State

National Commission, as the case commission or the National

may be, shall have the power of a Commission, as the case may be,

Judicial Magistrate of the first class shall have the power of a Judicial

for the trial of offences under this Magistrate of first class for the trial

Act, and on such conferment of of offences under sub-section (1),

powers, the District Forum or the and on conferment of such powers,

State Commission or the National the District C ommission or the State

Commission, as the case may be, on commission or the National

whom the powers are so conferred, Commission, as the case may be,

shall be deemed to be a Judicial shall be deemed to be a Judicial

magistrate of the first class for the Magistrate of first class for the

purpose of the Code of Criminal purposes of the Code of Criminal

Procedure, 1973. Procedure, 1973 (2 of 1974).

(3) All offences under this Act may (3) Save as otherwise provided, the

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10. The comparison of these provisions would indicate the nature of the difference in the language of the said two provisions. However, the basic premise remains the same. What this Court is concerned with is the nature of proceedings under Section 27 (1) of the C.P. Act, 1986 and even if the original order, passed by the Consumer Forum is dated 21/10/2016, considering the language of the corresponding provision in the Act of 2019, the position would be the same.

11. Prior to the amendment of section 27 of the C.P. Act, 1986 by insertion of sub-sections 2 & 3, the original sec.27 contained a proviso, which came up for consideration before the Karnataka High Court in Paramjit Singh Vs. State of Karnataka, (1999) 2 Kant.L.J. 54, in which, the proviso to the then existing Section 27 of the C.P. Act, 1986 was struck down being unconstitutional, on the ground that it permitted the Forum and the Commission to impose the punishment without providing any procedure, resulting in deprivation of rights conferred upon the persons under Articles 20

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and 21 of the Constitution. This judgment was challenged by the State of Karnataka before the Hon'ble Apex Court [2006 (4) SCC 49], however, by Act 62 of 2002 with effect from 15.03.2003, proviso, to sec.27 of the C.P. Act, 1986 was deleted and Sub-sections 2 and 3 were inserted in Section 27 of the C.P. Act, 1986.

12. A perusal of Section 27 (1) of the C.P. Act, 1986, indicates that where a person against whom a complaint is made, fails or omits to comply with any order made by the Forum/Commission such person shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine which shall not be less than Rs.2000/- but which may extend to Rs.10,000/- or with both. [In the CP Act of 2019, the provision dealing with the imprisonment is the same, however the fine is enhanced, as indicated below.]

13. After amendment of 2003, by virtue of the language of Section 27 (2) of the C.P. Act, 1986, the District Forum/Commissions were conferred with the powers of the Judicial Magistrate First Class for trial of offences under the C.P. Act, 1986, which was notwithstanding anything contained in the Cr.P.C. meaning thereby, that the Forum or the Commissions, as the case may be, were now judicially empowered to try a defaulter/violator of the order passed

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by the Forums/Commissions, for the offence punishable under Section 27(1) of the C.P. Act, 1986, and so also to impose sentence upon him. Had the provision stopped there perhaps it would have been permissible for the Forums/Commissions to themselves devise a procedure, for trial of offences under Section 27(1) of the C.P. Act, 1986, for the reason that such conferment of power was dehors, the provisions of the Cr.P.C., meaning thereby, that the provisions of the Cr.P.C. would not be stricto sensu, applicable to a trial as contemplated by Section 27(2) in respect of an offence under Section 27(1) of C.P. Act, 1986.

14. A perusal of Section 27(2) of the C.P. Act, 1986, would indicate, that it goes a step further and mandates, that the Forum or the Commission as the case may be, shall also be deemed to be a JMFC, for the purposes of the Cr.P.C., which would indicate that for the purpose of trial of an offence under sec.27(1) of the C.P.Act 1986, the Forum/Commission, shall be a JMFC. The expression "confer" is a pointer to something done overtly and explicitly. The words "confer" and

"conferment" mean "to give" and "conferring" is an act of authority [see P. John Chandy & Co. (P) Ltd Vs. John P. Thomas, (2002) 5 SCC 90]. No doubt true, that Section 27(2) of the C.P. Act, 1986, uses the expression "and on such conferment of powers" and "on whom the powers are so conferred", in relation to the later part of the Section

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by which the Forums/Commissions are deemed to be JMFC for the purpose of Cr.P.C., however, such conferment has to be necessarily related to the first part of Section 27(2), which states that the Forum/Commissions shall have the power of a JMFC for the trial of offences under the C.P. Act 1986. Though the provisions of Section 27(2) of the C.P. Act, 1986, prima facie indicates by use of the expression "and on such conferment of powers" and "on whom the powers are so conferred", that there was a requirement of such conferment, either by way of a notification by the State Government or by the concerned High Court, however, such a construction if put upon the language of Section 27(2) of the C.P. Act, 1986, would have a debilitating effect, and would render the very purpose of enacting the Section nugatory and the first part of the provision unguided and uncontrolled by any procedure thereby making it open, to the same challenge, as was upheld by the learned Division Bench of the Karnataka High Court in Paramjit Singh (supra). It is therefore apparent, that the expressions "on such conferment" and "on whom the powers are so conferred" cannot be distanced or divorced from the first part of Section 27(2) of the C.P. Act, 1986. In the present case since sec.27(2) of the C.P. Act, 1986, by express language makes the Forum/ Commissions a Judicial Magistrate First Class for trial of offences under the C.P. Act, 1986, and also deems the Forum/ Commissions as a JMFC for the purpose of the Cr.P.C., it follows that

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a Forum/Commission, while trying the offences under the C.P. Act, 1986, would be a JMFC under the Cr.P.C. and there would be no requirement of any separate notification for that purpose, as the provision itself confers such power upon the Forum/Commission.

15. Though the language of Section 27(2) of the C.P Act, 1986, could have been happily worded however it is a trite position of law that wherever possible the language of a provision has to be interpreted in a manner so as to give meaning and teeth to the provision instead of holding the same to be redundant due to the peculiarity of the language used. In fact, the purpose of making the Forum/Commission a JMFC within the purview of the Cr.P.C., would be to prescribe a procedure to be followed by the Forums/Commissions while conducting a trial for the offence punishable under Section 27(1) of the C.P. Act, 1986, which but for the later part of the provision would not have been there. Section 27(2) of the C.P. Act, 1986, therefore creates a legal fiction whereby the District Forums/Commissions are deemed to be JMFC's under the Cr.P.C. It is thus apparent that reading Section 27(2) of the C.P. Act, 1986, as a whole, in view of the purpose and object for its enactment, which was to provide an enforcement of the orders passed by the Forum/ Commission in a speedy manner, the two parts of Section 27(2) of the C.P. Act, 1986, will have to be read in

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conjunction with each other and so also supplementing each other.

16. In Vishwabharti House Building Co.Op Society (supra), while considering the constitutional validity of the C.P. Act, 1986, in the context of Section 25 of the C.P. Act, 1986, which created a legal fiction to the effect that an order made by the Forum/Commission will be deemed to be a decree or order made by Civil Court in a suit, it was held that the same had a specific purpose, i.e. execution of the order passed by the Forum/Commission and only in the event the Forum/Commission was unable to execute its order, the same may be sent to the Civil Court for its execution and it was not necessary that in each and every case the order passed by the Forum/Commission was required to be sent to the Civil Court for execution thereof. Further in the context of Section 27 of the C.P. Act, 1986, it has been held therein as under :

"58. Furthermore, Section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to Order 39 Rule 2-A of the Code of Civil Procedure or the provisions of the Contempt of Courts Act or Section 51 read with Order 21 Rule 37 of the Code of Civil Procedure. Section 25 should be read in conjunction with Section 27. A parliamentary statute indisputably can create a tribunal and might say that non-compliance with its order would be punishable by way of imprisonment or fine, which can be in addition to any other mode of recovery".

17. Vishwabharti House Building Co.Op Society (supra),

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further holds that a statutory tribunal which has been conferred with the power to adjudicate the dispute and pass necessary orders has also the power to implement its order. It further goes on to hold that the C.P. Act of 1986 which is a self contained Code, even if it has not been specifically spelt out must be deemed to have conferred upon the tribunal all powers in order to make its order effective.

18. In V. Anil Kumar Vs. State of Tamil Nadu, 2007 SCC Online 876, the learned Division Bench while considering sec.27(2) of the C.P. Act, 1986, in light of the language thereof, has held as under :

"26. Moreover, Section 27(2) of the Consumer Protection Act, opens with, "non-obstante clause". The section confers powers of a Judicial Magistrate of First Class upon the Consumer Forums, "notwithstanding anything contained in the Code of Criminal Procedure, 1973". Therefore, there is no need for the Consumer Forums to look forward to a Notification from the State Government for exercising those powers, when the statute has clothed these Forums with such power by operation of law.

27. The purport of Section 27(2) of the Consumer Protection Act, is to create a legal fiction. This is made clear by the use of the expression "shall be deemed to be a Judicial Magistrate of First Class for the purpose of the Code of Criminal Procedure". No Court of a Judicial Magistrate is sought to be established afresh, by section 27(2). As seen from the earlier discussion, a notification under Section 11(1) of the Code may be necessary for establishing a new Court of Judicial Magistrate in an area other than a metropolitan area. But such a notification is not necessary when an Act of Parliament confers powers upon an existing Forum, by a deeming provision.

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28. The above legal position could be easily understood, if we look at similar provisions under other enactments such as The Family Courts Act, 1984. Section 7(2) of the said Act confers upon the Family Courts constituted under the Act, the powers of a Magistrate under Chapter IX of the Code of Criminal Procedure. No Notification appears to have been issued by the State Governments under Section 11(1) or 16(1) of the Code to constitute these Family Courts, as Courts of Judicial Magistrates. Therefore it is clear that when the Statute confers certain powers upon an existing Forum, the powers so conferred get activated instantaneously, unless a contrary intention appears from the Statute itself."

18-A. In State of Uttar Pradesh Vs. Hari Ram, (2013) 4 SCC 280, while considering the position regarding a deeming provision creating a legal fiction, the Hon'ble Apex Court has held thus :

"18. The legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist. Sub-section (3) of Section 10 contained two deeming provisions such as "deemed to have been acquired" and "deemed to have been vested absolutely". Let us first examine the legal consequences of a "deeming provision". In interpreting the provision creating a legal fiction, the court is to ascertain for what purpose the fiction is created and after ascertaining this, the court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. This Court in Delhi Cloth and General Mills Co. Ltd.v. State of Rajasthan [(1996)

2 SCC 449] held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands."

18-B. It is thus axiomatic, in light of the discussion above and the judicial pronouncements, the deeming fiction as contained in

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Section 27(2) of the C.P. Act, 1986, makes the Forums/Commissions, a JMFC even within the meaning of the Code of Criminal Procedure and there is no need for a separate notification to be issued in that regard.

19. That takes me to the consideration of the contention of Mr. Akshay Naik, learned counsel for the petitioner that by virtue of the Forums/Commissions having the status of a JMFC under the Cr.P.C., due to the deeming provision as contained in sec.27(2) of the CP Act, 1986, the procedure as contemplated under the Cr.P.C. is necessary to be followed for the purposes of trial of offences under Section 27(1) of the C.P. Act, 1986.

20. In this context, two things are necessary to be noted, the first one being that by virtue of the provisions of Section 27 (2) of the C.P. Act, 1986, the 'trial of an offence' under Section 27(1) of the C.P. Act, 1986, has to be conducted by the procedure as prescribed under the Cr.P.C., which is indicated from the later part of Section 27(2) of the C.P. Act, 1986, which appears to have been specifically inserted to introduce a procedure for the purpose of such a trial [see Paramjit Singh (supra)]. The second one being what is provided by Section 27(3) of the C.P. Act, 1986, inasmuch as, it directs that the offences under the Act of 1986 may be tried summarily. The

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combination of later part of Section 27(2) of the C.P. Act, 1986, which makes the Forums/Commissions a Judicial Magistrate under the Cr.P.C., and the requirement under Section 27(3) of the C.P. Act, 1986, to try the offences summarily would indicate that the procedure prescribed in Cr.P.C., for summarily trials will have to be adopted for the purpose of trial of offences under Section 27(1) of the C.P. Act, 1986.

21. The language of Section 27 of the C.P. Act, 1986 and that of Section 72 of the C.P. Act, 2019, is identical, except in two aspects. The first one being that in Section 27(1) of the C.P. Act, 1986, it is stated that where a trader or a person against whom a complaint is made or the complainant fails or makes to comply with any order made by Forums/Commissions, the penalty is prescribed in said Section would follow, as against which in Section 72(1) of the C.P. Act, 2019, the expression used is whoever fails to comply with any order with Forums/Commissions. The other difference is of quantum of fine with Forum/Commission is capable of imposing inasmuch as Section 27 of the C.P. Act, 1986, contemplates the fine to be not less than Rs. 2,000/- but which may extend to Rs. 10,000/-, whereas Section 72 of the C.P. Act, 2019, contemplates that the fine shall not be less than Rs. 25,000/- which may extend to One lakh rupees. There is yet another difference, between the two provisions,

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inasmuch as, in Section 27(3) of the C.P. Act, 1986, all offences under the said Act 'may' be tried summarily, whereas under the new Act of 2019 the word "may" has been replaced with "shall" and so also the expression "save as otherwise provided" has been inserted in the C.P. Act, 2019.

22. Chapter XXI of the Cr.P.C., deals with summary trials. Considering the quantum of sentence and the fine, as contemplated by Section 27(1) of the C.P. Act, 1986, and Section 72(1) of the C.P. Act, 2019, strictly speaking in view of what has been provided in Section 260(1) (i) to (ix) of Cr.P.C., and specifically in view of the restriction imposed in sec.262(2) Cr.P.C., limiting the sentence of imprisonment for a term not exceeding three months, the summary procedure would not have been applicable, in view of the position that sec.27(1) of the CP Act,1986, provides for imposition of punishment for a term which may extend to three years. However one has to consider the express language of Section 27(3) of the C.P. Act, 1986 and Section 72 (3) of the C.P. Act, 2019, which specifically mandates that for 'trial of offences' under Section 27(1) of the C.P. Act, 1986 and 72(1) of the C.P. Act, 2019, the procedure has to be summary in nature. The expression "All offences under this Act may be tried summarily", as occurring in sec.27(3) of the CP Act, 1986, and so also the expression "save as otherwise provided" occurring in

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Section 72(3) of the C.P. Act, 2019, will have to be construed in light of any procedure which may have been provided for, in the C.P. Act and not otherwise, for the reason, that in case, this is not so done, the entire provision would become redundant and otoise, for then the trial of offences would have to be a regular/warrant trial, which would go against the mandate of sec.27(3) CP Act, 1986, which provides the same to be of a summary nature. It would also be material to note that Sec.262(2) Cr.P.C. uses the expression 'under this Chapter', which would relate to the offences as contained in sec.260(1)(i) to (ix) of Cr.P.C. and thus the mandate of sec.262 (2) Cr.P.C. would be restricted to those offences and not otherwise. Thus what is laid down in sec.27(3) of the C.P. Act, 1986 and 72(3) of the C.P. Act, 2019, that the trial of offence under the CP Act, will have to be summary, will prevail, being a substantive provision of law, as contained in these Statutes, which would govern the trial of offences under these Statutes.

23. The above position is supported by what has been held in State of Bombay Vs Narji Bhaiji Bhil, 1950 SCC OnLine Bom 9, relied upon by Mr. Naik, learned Counsel for the petitioner, in which while dealing with the quantum of sentence to be imposed under Section 116 of the Bombay Prohibition Act, 1949, which also was required to be tried summarily and which required a sentence of

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more than 3 months to be imposed, the position has been dealt with in the following manner :

"It has also been contended that in view of sub-s.

(2) of s. 262 of the Code of Criminal Procedure, the accused cannot be awarded a sentence of imprisonment exceeding three months. Section 262 is in Chapter XXII of the Code and sub- s. (2) of this section provides that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction "under this Chapter". It has been urged that this is one of the provisions of the Code laying down the procedure for the trial of summary cases and as under s. 116 of the Prohibition Act, the offences under this Act are to be tried in accordance with the procedure prescribed in the Code for the trial of summary cases, no sentence of imprisonment exceeding three months can be passed in the case of conviction for any such offence. I do not think that this contention is sound. The words "any conviction under this Chapter" in sub-s. (2) of s. 262 show that this sub-section applies only in those cases which are tried summarily by reason of the provisions contained in that Chapter XXII, that is, in the case of conviction for any of the offences specified in ss. 260 and 261 of the Code. The question of sentence is also not a matter of procedure. A provision in a Statute prescribing a sentence for any act imposes a liability or a penalty for that act and is therefore, a substantive provision of law and not one dealing with a matter of procedure. Section 116 prescribes the procedure for the trial of cases arising under the Prohibition Act. Sub-s. (2) of s. 262 will , therefore, not apply in such cases. Section 65 of the Prohibition Act and other sections of this Act prescribe minimum sentences of imprisonment exceeding three months in respect of several offences. Sub-section (2) of s. 260 of the Code provides that when in the course of a summary trial it appears to the Magistrate that the case is one which is of a character which renders it undesirable that it shall be tried summarily, the Magistrate shall proceed to re-hear the case in

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manner provided by the Code. This provision, therefore, enables 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. It cannot be resorted to by Magistrates trying cases under the Prohibition Act, as under s. 116 all such cases are to be tried in a summary way . The provisions in the Act prescribing minimum sentences exceeding three months will therefore be rendered nugatory, if the argument that sub-s. (2) of s. 262 applies in such cases is accepted. The true meaning of any part of a statute is that which best harmonizes with every other part of it and a construction which will leave without effect any part of a statute must be rejected (see Maxwells on Interpretations of statute, 9th Edition, pages 31 and

19). Section 116 of the Act must therefore be read along with the provisions prescribing minimum sentences of imprisonment exceeding three months for many offences and if this is done, it will be clear that the Legislature did not intend that s. 262(2) of the Code should apply in the case of convictions for such offences. In my opinion, therefore, sentences of imprisonment for periods exceeding three months can be awarded for offences punishable under the Bombay Prohibition Act, even though they are tried in a summary way. Coming next to the question as to whether in such cases a sentence of more than three months can be imposed, it is argued that what s. 262(2) of the Code of Criminal Procedure deals with is not a question of procedure. It is true that sentence is a question of substantive law. It is open to argument, however, that what s. 262(2) deals with, is not an alteration of the sentence but the limitation of the sentence in cases tried summarily. In effect the section says that in case it is proposed to give a sentence of more than three months, the ordinary procedure must be followed. In other cases, the summary procedure may be followed. But the draftsman of s. 116 of the Bombay Prohibition Act seems to have dealt with this matter on the footing that inasmuch as s. 262 deals with the question of sentence, it is a question of substantive law and not a question of procedure. It is obvious that inasmuch as the Prohibition Act makes minimum sentence of three months or more

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obligatory in a number of cases and it could not possibly be the intention that all these cases should be tried by a Sessions Court which would be the only Court empowered to try offences wherein a sentence of more than three months is required if we were to accept this interpretation of the s. 116, we must take it that s. 262(2) of the Code of Criminal Procedure was intended to be excluded from the purview of s. 116 on the ground that it deals with the question of sentence, ordinarily a question of substantive law. It would be open, therefore, to a Magistrate trying an offence under the Bombay Prohibition Act under the provisions of section 116 , to impose any sentence which he is empowered to pass and which has been prescribed for the offence."

24. It is thus apparent, that where a special Statue requires the trial of an offence in a summary manner, the prohibition contained in Section 262(2) of the Cr.P.C., would not come in the way of sentencing the accused, in case such a sentence exceeds the limit as evinced therein. Though Section 27(3) of the C.P. Act, 1986, could have been happily worded as is the case in respect of Section 143 of the Negotiable Instruments Act, however one cannot loose sight of the fact, that what is mandated by Section 27(3) of the C.P. Act, 1986, is that the trial of offences under Section 27(1) of the C.P. Act, 1986, may be in a summary manner. This is further indicated by the fact that in Section 72(3) of the C.P. Act, 2019, the word "may" as occurring in Section 27(3) of the C.P. Act, 1986, has been replaced by the word "shall" in Section 72(3) of the C.P. Act, 2019, indicating the intention of the Legislature that the trial of an offence under Section

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27(1) of the C.P. Act, 1986, and under Section 72 (1) of the C.P. Act, 2019, necessarily has to be of a summary nature.

25. That being said, unless and until the procedure as prescribed therein is followed, for the trial of an offence under Section 27(1) of the C.P. Act, 1986, and Section 72(1) of the C.P. Act, 2019, there cannot be any conviction and consequent punishment imposed upon the accused merely on the ground that there has been a non compliance of the order of Forum/Commission. Since the conviction under Section 27(1) of the C.P. Act, 1986, and Section 72(1) of the C.P. Act, 2019, involves the deprivation of the personal liberty of a citizen, the same cannot be done without following the due process of law which would mean, compliance of the procedure as prescribed under Chapter XXI of the Cr.P.C., and by virtue of Section 262(1) of the Cr.P.C., that under Chapter XX of the Cr.P.C. and the dictate of sec.260(2) or of 262(2) Cr.P.C. would not be attracted, in light of what has been stated in Sec.27(3) of the Act of 1986 and sec.72(3) of the Act of 2019.

26. Though, in Shanthiniketan Housing Foundation Vs. Brig (Retd) J.N. Devaiah and Others, 2009 SCC OnLine Kar 265 (para 30), it has been held in the context of use of the word "may" as occurring in Section 27(3) of the C.P. Act, 1986, and the quantum of

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punishment of 3 years contemplated by Section 27(1) of the C.P. Act, 1986, that in a given case discretion has been vested to the Court to try as a summons case or as a warrant case, the same, clearly militates, against the specific dictate of Section 27(3) of the C.P. Act, 1986, and so also Section 72(3) of the C.P. Act, 2019, for the reason that both these provisions do not make the nature of trial, dependent upon the quantum of punishment and the quantum of fine, and necessarily mandate that the trial would be a summary trial, considering which, de-hor's what is provided in Section 260(1)(i) to

(ix) and sec.262(2) of the Cr.P.C., the summary procedure as laid down therein shall have to be followed. I, am therefore not in agreement with what is held in Shanthiniketan Housing Foundation (supra), in so far as it holds, that in a given case Forum/Commission has a discretion vested in it to try the offence under Section 27(1) of the C.P. Act, 1986, as a warrant case.

27. I, further find support in the above view, by Kamlesh Aggarwal Vs. Narain Singh Dabbas and another, (2015) 11 SCC 661, in which it has been held by the Hon'ble Apex Court, that it is necessary to follow the procedure as provided in Cr.P.C., in Chapter XXI-Section 262(1) read with chapter XX Section 254 of the Cr.P.C., so as to initiate penal action under Section 27 of the C.P. Act, 1986, for non compliance of the order. The only difficulty, in following such

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a course, was the mandate of Section 262(2) which contemplates, that no sentence or imprisonment for a term exceeding three months shall be passed in a case of any conviction under this chapter, the position in respect of which has already been explained above. The manner in which a summons case is to be decided is already spelt out in sec.245 Cr.P.C. and elucidated in Vasant Manga Mahajan (supra) and does not need any further elaboration.

28. In so far as the contention that while deciding a trial under sec.27(1) of the C.P. Act, 1986 and one under sec.72(1) of the C.P. Act, 2019, considering that the penalty of imprisonment and fine as contemplated by those provisions, is for the non-compliance of the order passed by the Forum/Commissions, and in view of what has been held in Vishwabharti House Building Co.Op Society (supra) that these orders are akin to Order 39 Rule 2-A of the Code of Civil Procedure or the provisions of the Contempt of Courts Act or Section 51 read with Order 21 Rule 37 of the Code of Civil Procedure and therefore what has been stated by the Hon'ble Apex Court in regard to incarceration of a person for non-payment of compensation or fine, in Jolly George Varghese and another Vs. The Bank of Cochin, (1980) 2 SCC 360 while considering sec.51 and order 21 Rule 37 C.P.C. as under :

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"10. Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Articles 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi case [(1978) 1 SCC 248] as developed further in Sunil Batra v. Delhi Administration [(1978) 4 SCC 494 : 1979 SCC (Cri) 155], Sita Ram v. State of U.P. [(1979) 2 SCC 656 : 1979 SCC (Cri) 576 : (1979) 2 SCR 1085] and Sunil Batra v. Delhi Administration [WP No. 1009 of 1979, decided on December 20, 1979] lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of daridra narayana , is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his willful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferrable from Article 11 of the Covenant. But this is precisely the interpretation we have put on the proviso to Section 51 CPC and the lethal blow of Article 21 cannot strike down the provision, as now interpreted.

11. The words which hurt are "or has had since the date of the decree, the means to pay the amount of the decree". This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11 (of the Covenant) and Article 21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the

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past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor's other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised Section 51 with the Covenant and the Constitution."

relying upon which a learned Division Bench of the Delhi High Court in Sanjeev Moses Davidson Vs. Central Jail No.2 Tihar, New Delhi, ILR (2003) II Delhi 320 while considering sec.27(1) of the C.P. Act, 1986, has held as under :

"33. We have noted above the judgment of the Supreme Court in State of Maharashtra's case (supra) upholding the virus of the C.P. Act, 1986. We have noted above that the judgment in Para 58 held that Section 27 of the Act is akin to Section 51 read with Order, 21 Rule 37 C.P.C. We accordingly hold that indigence without intervening dishonesty or bad faith in liquidating the liability fastened by the District Forum or State/National Commission is no ground to incarcenate a person. Has an investigation been done by the District Consumer Forum regarding the current financial position of the petitioner. Does he have the means to pay and is still, with mala-fide intention refusing to comply with the directions? Nothing on record suggest this."

and therefore the above proposition are to be made applicable to a trial of an offence under sec.27(1) of the C.P. Act, 1986 or sec.72(1)

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of the C.P. Act, 1986, in my considered opinion, it will be too premature in the present matter to say anything about the same for the reason that the evidence in the matter is yet to be completed. Needless to say that while deciding an offence under sec.27(1) of the C.P. Act, 1986 or sec.72(1) of the C.P. Act, 2019, all defences which may be available to an accused therein in law or the facts availing therein, will be permissible to be raised and in case they are so raised, shall have to be death with by the learned Forum/Commissions, in the judgment to be rendered therein.

29. In view of the above position, considering that the impugned orders, dated 27.01.2022 and 10.02.2022, do not follow the mandate of Section 27(3) of the C.P. Act, 1986, and though they grant permission to the petitioner, who is an accused before the Commission, to lead evidence, even though permission was not necessary, it being a statutory right of the accused therein to lead evidence in his defence, on account of the applicability of Chapter XXI and XX of the Cr.P.C. as indicated above, both the impugned orders to the extent that they direct the placing of the matter for final arguments and filing written notes of arguments, even before the evidence is tendered and recorded, and so also in addition the order dated 10/02/2022, imposing cost of Rs.20,000/- upon the petitioner, cannot be sustained and are hereby quashed and set aside. It is made clear that in a trial of an offence under sec.27(1) of the C.P. Act, 1986 or under sec.72(1) of the C.P. Act, 2019, the procedure as laid down in Chapter XXI vide sec.262(1) of Cr.P.C.

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which in turn relates to the procedure in sec.254 of the Cr.P.C. - Chapter XX, has to be followed and the person accused of non- compliance with the order, has a Statutory right to lead evidence, in view of sec.27(3) of the C.P. Act, 1986 / Sec.72(3) of the C.P. Act, 2019 read with Chapter XXI and Chapter XX-sec.254 of the Cr.P.C. and so also to raise all such defenses as are permissible and available to him in law. The matter is remanded back to the learned State Commission, Nagpur, for decision of the Execution Application No. EA/17/3, in accordance with what has been mandated by Section 27(3) of the C.P. Act, 1986, and Section 72(3) of the C.P. Act, 2019. The petition is accordingly allowed in the above terms.

30. Considering that the Execution Application is of the year 2017 and the age of the respondent which is stated to be 69 years, the learned State Commission, Nagpur, shall endeavour to decide the Execution Application No. EA/17/3, as expeditiously as possible.

31. Rule is made absolute in the above terms.

( AVINASH G. GHAROTE, J.)

S.D.Bhimte

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