Madhya Pradesh High Court
Bhushan Jain vs The State Of Madhya Pradesh on 13 December, 2018
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HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
S.B: HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA
CRIMINAL REVISION No.2019/2018
BHUSHAN JAIN S/O VIMAL JAIN
Vs.
STATE OF M.P
Shri Anand Soni, Advocate for the applicant.
Shri Swapnil Sharma, Public Prosecutor for the
respondent/State.
O R D E R
(Passed on 13.12.2018) This order shall dispose of this criminal revision application filed under section 397 read with section 401 of the Cr.P.C., which has been preferred against the judgment dated 27.04.2018 passed by the Court of ASJ, Ujjain in Criminal Appeal No.62/18, whereby learned appellate Court was pleased to dismiss the appeal upholding the judgment dated 29.01.2018 passed by the Court of JMFC, Ujjain in Criminal Case No.6528/2010.
2. The applicant stood trial for committing offence under section 3 read with section 7 of the Essential Commodities Act, 1955 having violated the provisions of Petroleum Gas & Distribution Regulation Order, 2000 and sentenced to six months RI with fine of Rs.2,000/-; in default of payment of fine further RI for seven days.
-2-3. As per the prosecution case, on 12.05.2010 the officers of Food Department inspected the applicant's commercial establishment and it was found that the applicant has transferred gas from bigger gas cylinders (containing 14.2 kg. Gas) to smaller gas cylinders of 2 kg. This act was in violation of clause 3(1)(a)(b)
(c), 4(1)(a)&(e), 6 & 7(c) of the Petroleum Gas Supply & Distribution Regulation Order. A case was registered and after investigation charge sheet was filed before the CJM, Ujjain. Learned JMFC, Ujjain vide judgment dated 29.01.2018 found the charge proved and convicted and sentenced the applicant as mentioned earlier. The conviction and sentence was challenged before ASJ, Ujjain, who vide judgment dated 27.04.2018 in Criminal Appeal No.62/2018 maintained the conviction and sentence and dismissed the appeal.
4. Aggrieved by the judgment passed by the appellate Court, the applicant has preferred this revision petition. While the revision petition contains the averment to the effect that the impugned judgment is erroneous on facts and on law, learned counsel has agitated the revision petition only on a single issue of law which is that the case was a summary triable case and the procedure as prescribed under sections 262 to 265 Cr.P.C ought to have been adhered to, which, however, was not done and such irregularity vitiates the whole trial as per the provision of section 461 Cr.P.C. He submits that during the trial proceedings, three Presiding Officers were transferred whereas the whole case ought to have been heard by one Presiding Officer from the stage of taking cognizance to the stage of pronouncement of judgment and -3- in case, the Presiding Officer was succeeded by another Presiding Officer, then de novo trial ought to have been conducted. A reference has been made to the provision of section 326(3) of Cr.P.C which bars hearing of a criminal case by successor Judge to proceed with the trial in a summary case from the stage the predecessor has left. In support of his contention, learned counsel has cited a number of pronouncements of various High Courts which are Kanailal Das vs. State of West Bengal 2004 CRI.L.J 3231; Ram Chhabila Singh vs. State of Bihar 2004 CRI.L.J 1334; Prafulla Pradhan vs. State of Bihar 1998(1) Crimes 295; State of Rajasthan vs. Rajesh Agrawal & others 1996 CRI.L.J 1057; Chandana Surya Rao vs. State 1989 CR.L.J 2077 & Ramadas Kelu Naik vs. V.M.Muddayya and another 1978 CRI.L.J 1043.
5. In all these cases it has been held that in the cases triable summarily, the successor Judge is required to initiate de novo trial, if the trial is still pending. Learned counsel has not only made oral submissions but has also made written submissions.
6. Per contra, learned counsel for the State Shri Swapnil Sharma has also in support of his contention cited an Apex Court judgment pronounced in the case of Mehsana Nagrik Sahkari Bank ltd. vs. Shreeji Cab Co. and others reported in 2013 4 Crimes (SC) 351(1), in which it has been held that when a case under section 138 NI Act has not been tried in a summary manner, then it was not required for the successor Magistrate to record evidence de nono and the Magistrate could proceed with trial from the stage he took over from the predecessor Magistrate.
-4-7. Considered rival contentions.
8. Section 12-A of the Essential Commodities Act, 1955 prescribes summary trial for offences under the Act. This has been reiterated in section 12AA(1)(f) of the Essential Commodities (Special Provision) Act, 1981. Learned counsel in his written submission, has referred to number of citations which are in respect of applicability of section 461 Cr.P.C in which such irregularity has been termed to be not curable.
9. Although, the cases under the Essential Commodities Act are triable summarily but as is apparent from the record, summary trial procedure as prescribed under sections 262 to 265 Cr.P.C has not been adopted. The summary trial procedure requires a memorandum of the statements of the witnesses to be recorded instead of verbatim recording of each and every word spoken by the witness in his evidence. There are few other differences between summary trial procedure and summons/warrant trial procedure which are apparent on comparative analysis of the procedures as shown in the Code of Criminal Procedure. The question is whether in a summary trial case if the procedure as shown in summons/warrant case is adopted, would it be considered to be not only irregularity but also an illegality which vitiates the whole trial? In the case of Radhe Shyam Aggarwal vs. State N.C.T AIR 2009 SC 1712, it has been held that when a trial under the Prevention of Food Adulteration Act was conducted in warrant trial manner whereas the Prevention of Food Adulteration Act (PFA) provided for trial by summary procedure, then the trial could not be considered to have been vitiated because the accused -5- could not show any prejudice or adverse effect on account of such irregularity. It was also held that there was no provision in PFA Act that trial in any manner other than summary manner would vitiate the whole proceedings.
10. In the case at hand, the scenario is similar to that in the case of Radheshyam (supra). There is no provision in the Essential Commodities Act which mandates compulsory adherence to summary trial. A perusal of section 12-AA(1)(f) of the Essential Commodities Act shows that it stipulates that "all offences under this Act shall be tried in a summary way and the provisions of sections 262 to 265 (both inclusive) of the Code shall, as far as may be, applied to such trial". It is important to note the words "as far as may be" in the above provision which leaves a window for adopting other manner of trial as well. Identical provision is contained in section 12-AA(1)(f) of the Essential Commodities (Special Provision Act), 1981 as well. The purpose to observe summary trial procedure is expediting culmination of trial proceedings which may become prolonged in case warrant trial procedure is adopted. However, on adopting warrant trial procedure, the accused has greater liberty to put forth his defence by elaborate cross examination etc. whereas summary procedure method tends to limit and shorten the procedure. Consequently, it is held that the irregularity in not adopting summary trial procedure is not an illegality which would vitiate the proceedings as shown in section 461 Cr.P.C.
11. In view of the above discussion, the contentions raised in the revision petition are rejected. Further, a perusal of the judgment of -6- both the Courts below, prima facie, do not show any error in the appreciation of evidence. As a result, there is nothing on record to disturb the conviction and sentence pronounced by the trial Court and maintained by the appellate Court. The revision petition stands disposed of as dismissed.
(SHAILENDRA SHUKLA) JUDGE Digitally signed by Hari Kumar Nair hk/ Date: 2018.12.15 12:30:18 -08'00'