Karnataka High Court
Gurappa Hanamantappa Bijapur And ... vs The State on 9 March, 1990
Equivalent citations: 1992CRILJ1653, ILR1990KAR1014
ORDER
1. This is a petition under S. 482 of the Code of Criminal Procedure (the Code for short). It is directed against the Order dated November 9, 1988, made by the Special Judge (the Sessions Judge), Bijapur, in Special Case No. 3/86 on his file.
2. The record of the petition and the record and proceedings in Special Case No. 3/86 sent for from the Special Court are perused and examined. The learned counsel representing the petitioners and the learned State Public Prosecutor for the Respondent State are heard.
3. The facts of the case, material to dispose of the present petition, are these :
Gurappa Hanamantappa Bijapur (Petitioner No. 1) is a Trader at Bagalkot. Irappa Virupaxappa Sindagi (Petitioner No. 2) was working at the material time as an employee, in the shop of petitioner No. 1. Petitioner No. 1 is given a licence as a Wholesale Dealer under the provisions of the Karnataka Edible Oil Dealers Licensing Order, 1977 (the Order for short) made by the Government of Karnataka in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955) (the Act for short) read with the Pulses, Edible Oil-Seeds and Edible Oils (Storage Control) Order, 1977 (Order No. S.O. 780 (E), dated 21st November, 1977 of the Government of India in Ministry of Civil Supplies and Co-operation). The licence granted to petitioner No. 1 is in Form-B of the Order, as required by Clause 4(2) of the Order.
On 7-8-1985, C. B. Kyathan, the Sub-Inspector of Police (Law and Order), Town Police Station, Bagalkot, received credible information that in the shop of petitioner No. 1, run under the name and style of "Ganesh Stores" situated at Old Market, Dalda tins had been stored unauthorisedly. With a view to verify the information, he secured two panchas and accompanied by them and the members of his staff, he proceeded to Ganesh Stores. Both the petitioners were present. The Sub-Inspector of Police noticed oil-tins, Rava, Atta, sugar, etc., being stocked in the shop. On being asked, whether there was any licence, petitioner No. 1 produced the licence. The stock-book was also produced. The entry relating to Dalda, made on 7-8-1985, indicated that the quantity of Dalda stored in the shop was 14 tins. On physical verification of the Dalda tins found in the shop, the Sub-Inspector noticed 69 tins. When questioned with regard to the excess tins of Dalda found in the shop, the petitioners did not produce any books to account for the excess stock. The Sub-Inspector found the actual stock of other items agreeing with the respective entries made in the stock-book.
Having noticed that the petitioners had contravened the provisions contained in the Order, he seized the licence, the stock-book and the entire quantity of Dalda stored in tins under a panchanama. He returned to the Police Station at about 9-30 p.m. lodged a complaint on behalf of the State, registered a case in Crime No. 134/85 for contravention of the provisions contained in the Order read with Sections 3 and 7 of the Act, issued F.I.R. and took-up investigation. He visited the shop of petitioner No. 1 on 7-8-1985 at about 5 p.m. and was there till 9-30 p.m. for purposes of inspection, verification and to complete the seizure proceedings.
On completion of investigation, the Sub-Inspector of Police forwarded both the petitioners with his final report. The learned Special Judge took the charge-sheet on his file in Special Case No. 3/86. He took cognizance of the contravention (the offence for short) alleged against the petitioners on 19-3-1986 and directed summons, making the same returnable by 23-4-1986. Petitioners Nos. 1 and 2. in response to the summons, entered appearance.
4. It appears from the Order-sheet maintained by the learned Special Judge and from the record and proceedings in Special Case No. 3/86 that the learned Special Judge proceeded to try the offence adopting the procedure for the trial of warrant cases by the Magistrate instituted on a Police report as laid down in Chapter XIX of the Code.
5. After complying with the provisions of Section 207 of the Code and presumably upon considering the Police report and the documents sent with it under Section 173 of the Code and after giving the prosecution and the petitioners and opportunity of being heard, the learned Special Judge reached the conclusion that there was ground for presuming that the petitioners had committed the offence. He, therefore, framed in writing a charge against both the petitioners. The charge was read over and explained to the petitioners and they were asked whether they would plead guilty of the offence charged or claim to be tried. The learned Special Judge framed charge on 18-9-1986. Both the petitioners pleaded not guilty to the offence charged.
6. The Respondent-State to establish the charge framed against the petitioners, examined four witnesses. Abdul Sattar (P.W. 1), who according to the prosecution, had accompanied the Sub-Inspector to the shop of petitioner No. 1 and witnessed the things done and the proceedings taken by the Sub-Inspector and who attested Ex. P-1, the seizure mahazar, did not support the prosecution case. He was cross-examined by the learned Public Prosecutor, who was in charge of the prosecution. Bhimappa (P.W. 2), the First Division Assistant in charge of Food Section in the Office of the Tahsildar, Bagalkot, gave evidence about the licence given to petitioner No. 1, marked as Ex. P-2. Hassan Sab (P.W. 3), another witness to the seizure proceedings, too failed to support the prosecution. He was cross-examined by the Public Prosecutor in charge of the prosecution. Chandrashekhar, the Sub-Inspector of Police, who detected the offence, set the criminal law in motion by lodging a complaint and challenged the petitioners, gave evidence as P.W. 4. The panchanama, the licence, the stock-register, the cashmemo, the complaint and the first information report issued on the basis of the complaint in the printed form, were marked Exs. P-1, P-2, P-3, P-4, P-5 and P-6 respectively.
7. Both the petitioners were examined under Section 313 of the Code with a view to enable them to explain the circumstances appearing against them.
8. Petitioner No. 1 admitted about the licence having been obtained by him under the provisions of the Order, about its currency on 7-8-1985, about the visit of the Sub-Inspector, about his ownership of the shop, about the employment of petitioner No. 2 as servant in his shop, and about petitioner No. 2 and he dealing in goods at the time of the visit of the Sub-Inspector. He also admitted that he produced Ex. P-2, the licence, Ex. P-3, the stock-book and Ex. P-4, the cash-memo, before the Sub-Inspector. Petitioner No. 1 also admitted that at the time of the visit of the Sub-Inspector, 69 sealed tins filled with Dalda, each tin weighing 15 Kgs had been stored in the shop. But he maintained that before he could produce the accounts in respect of 69 sealed tins of Dalda, the Sub-Inspector seized them and took away. According to him, some more tins of Dalda were expected to arrive.
9. Petition No. 2 took almost the same stand and admitted the truthfulness of the evidence adduced by the prosecution. But he maintained that the evidence of the Sub-Inspector to the effect that he and petitioner No. 1 did not produce accounts in respect of the tins of Dalda found in the stores, adding that (at about the time of the visit of the Sub-Inspector) 69 tins of Dalda had come.
10. It appears from the record, the learned Special Judge heard the arguments on both sides and posted the case for judgment.
11. On 1-3-1986, when the matter had stood to hear further arguments, the Public Prosecutor filed an application, purporting to be one under Section 216 of the Code, stating therein that the charge framed against the petitioners mentioned that they committed the offence by contravening condition No. 6 of the licence issued in favour of petitioner No. 1 and that on perusal of the licence, it appeared that the condition contravened by the petitioners was not Condition No. 6, but Condition No. 8(1) of the licence. The prosecution prayed in the application to amend the charge by substituting Condition No. 6 by Condition No. 8(1). Both the petitioners filed objections to the prayer made by the prosecution contending, inter alia, that there was no provision in the Act to amend or alter the charge and that the amendment, if granted as sought for, would prejudice them completely and result in a situation in which they would be asked to meet a different charge. They also sought the dismissal of the application on the ground that the application was belated; that they have been taken by surprise by the motion; and that, if the application was allowed, it would result in failure of justice to them.
12. The learned Special Judge, on consideration of the material in the application and the objections, held that the prosecution had made out a case for grant of the prayer. According, by the order dated November 9, 1988, he allowed the application filed by the prosecution, and permitted the Public Prosecutor to amend the charge-sheet by substituting Condition No. 8(1) in place of Condition No. 6. He directed a similar amendment in the charge.
13. Pursuant to the order, both the charge-sheet and the charge were amended. The learned Special Judge posted the case to record the plea of the petitioners afresh to the charge as amended, as required under S. 216(3) of the Code giving liberty to the prosecution to adduce additional evidence, if any, and to the petitioners to recall any witness already examined for further cross-examination. The petitioners have approached this Court with this petition when the case was at the stage of recording the plea of the petitioners afresh after the amendment of the charge.
14. The petitioners filed the petition after serving copy of the petition on the learned State Public Prosecutor. The learned State Public Prosecutor appeared for the respondent. The petition is at the stage of admission. It is heard on merits by the consent to both the sides and is disposed of finally by this order.
15. The learned counsel for the petitioner, reading the provisions contained in the Essential Commodities (Special Provisions) Act, 1981 (No. 18 of 1981) (hereinafter referred to as the Act of 1981), which was brought on the statute book with effect from September 2, 1981, strenuously submitted that the learned Special Judge was completely in error in trying the offence alleged against the petitioners adopting the procedure prescribed for the trial of warrant cases by the Magistrates; that he should have tried the offence in the summary way as provided in the Act of 1981; that the charge framed in writing against the petitioners was illegal being without jurisdiction; and that, therefore, on the basis of the charge framed without jurisdiction, the learned Special Judge was wholly in error in entertaining an application for amendment of the charge filed by the prosecution under Section 216 of the Code. According to him, the decision of the learned Special Judge on the application filed by the prosecution, is illegal and unsustainable in law. According further to him, when the order made by the learned Special Judge suffers from this serious infirmity, it warrants no consideration to determine whether it is correct, legal or proper. The learned counsel also submitted that the trial of the offence adopting the procedure prescribed for the trial of warrant cases by Magistrates has vitiated the entire proceedings, deserving their quashing.
16. As against this, the learned State Public Prosecutor submitted that, notwithstanding the provisions contained in the Act of 1981, the procedure adopted by the learned Special Judge cannot be said to be illegal, so as to vitiate the proceedings justifying the quashing of the same. He also submitted that the order made by the learned Special Judge, based as it is on the correct interpretation of the law bearing on the question and on the proper and correct appreciation of the facts and circumstances in which the amendment was sought, does not suffer from any infirmity or illegality so as to justify interference with it.
17. In view of the submissions made at the Bar, the questions that arise for determination in this petition are :
(1) Whether the procedure adopted by the learned Special Judge to try the offence alleged against the petitioners is illegal or incorrect or improper so as to justify the prayer made by the petitioners to quash the proceedings ?
(2) Whether the order dated November 9, 1988 is correct and proper ?
17A. My decision on the above questions is as under :
(1) In the negative.
(2) In the affirmative.
18. The reasons for the decision are these :
19. The offence alleged against the petitioners consists of the contravention of the terms and conditions of the licence granted in favour of petitioner No. 1 under the provisions of the order.
20. The penalties for contravention of any order made under Section 3 are provided in Section 7 of the Act. Under Section 7(1)(a), if any person contravenes any order made under Section 3, he is liable for punishment. The punishment provided is imprisonment for a term which may extend to one year and fine if the order contravened is the one made with reference to Clause (h) or Clause (i) of sub-section (2) of Section 3 of the Act. Sub-section (2) of Section 3 of the Act, so far relevant for the present purpose, provides that without prejudice to the generality of the powers conferred by sub-section (1), any order made thereunder may provide (h) for collecting any information or statistics with a view to regulating or prohibiting any of the matters referred in the preceding clauses; and (i) for requiring persons engaged in the production, supply or distribution of, or trade and commerce in, any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the Order.
21. Having carefully examined the provisions contained in the Order, it cannot be said that the Order comes either within the ambit of Clause (h) or Clause (i) of sub-section (2) of Section 3 of the Act. Section 7(1)(a)(ii) provides punishment for contravention of any Order made under Section 3 not falling within the scope of Clause (h) or Clause (i) of sub-section (2) of Section 3. If any person contravenes such Order, the punishment provided is imprisonment for a terms not less than three months, but which may extend to seven years and fine. The offence alleged against the petitioner, if proved or established, would fall under Section 7(1)(a)(ii) of the Act and the petitioners have to be visited with the punishment provided therein.
22. The division of criminal cases into summons and warrant cases is basically and essentially based on the punishment which can be inflicted. Those cases which are punishable with imprisonment for two years and under are summons cases and the rest are warrant cases. This division marks off simple or ordinary cases from serious or grave ones. The division also determines the mode of trials. The procedure for the trial of summons cases is provided by Chapter XX, while that for warrant cases is laid down in Chapter XIX of the Code. Having regard to the definition of the expression "warrant case" in the Section 2(x) of the Code, it is undeniable that the case against the petitioners is a warrant case.
23. The learned Special Judge has proceeded to try the case of the petitioners instituted and commenced on the basis of the charge-sheet as a warrant case.
24. The question for consideration is, whether he could have done so the face of the provisions contained in Sections 12A and 12AA of the Act of 1981.
25. Section 12A of the Act was substituted by Section 12A of the Act of 1981.
26. Under Section 12A(1) of the Act of 1981, the State Government may, for the purpose of providing speedy trial of the offences under the Act of 1981, by Notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the Notification. Sub-section (2) of the said Section deals with the composition of a Special Court, laying down that Special Court shall consist of a Single Judge to be appointed by the High Court upon a request made by the State Government. The Explanation gives the meaning of the expression "appoint" appearing in sub-section (2) by stating that the expression shall have the meaning given to it in the Explanation to Section 9 of the Code. Sub-section (3) lays down the qualifications required for the appointment of a Judge to a Special Court. A person qualified for appointment as a Judge of a High Court or a person, who has, for a period of not less than one year, been a Sessions Judge or an Additional Sessions Judge, can be appointed as a Judge of the Special Court.
27. Section 12AA of the Act of 1981, the material provisions, reads thus :
"12AA. (1) Notwithstanding anything contained in the Code, -
(a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court;
(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of Section 167 of the Code, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate :
Provided that where such Magistrate considers -
(i) when such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of detention authorised by him;
that the detention of such person in unnecessary, he may, if he is satisfied that the case falls under the proviso to Section 8, order the release of such person on bail and if he is not so satisfied, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c) the Special Court may, subject to the provisions of clause (d) of this sub-section, exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section;
(d) save as aforesaid no person accused of suspected of the commission of an offence under this Act shall be released on bail by any Court other than a Special Court or the High Court :
Provided that a Special Court shall not release any such person on bail -
(i) without giving the prosecution an opportunity to oppose the application for such release unless the Special Court, for reasons to be recorded in writing, is of opinion that it is not practicable to give such opportunity; and
(ii) where the prosecution opposes the application, if the Special Court is satisfied that there appear reasonable grounds for believing that he has been guilty of the offence concerned :
Provided further the Special Court may direct that any such person may be released on bail if he is under the age of sixteen years or is a woman or is a sick or infirm person, or if the Special Court is satisfied that it is just and proper so to do for any other special reason to be recorded in writing;
(e) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act take cognizance of that offence without the accused being committed to it for trial;
(f) all offences under this Act shall be tried in a summary way and the provisions of Ss. 262 to 265 (both inclusive) of the Code shall, as far as may be, apply to such trial;
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years, (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code, be charged at the same trial :
Provided that such other offence is, under any other law for the time being in force, triable in a summary way :
Provided further that in the case of any conviction for such other offence in such trial, it shall not be lawful for the Special Court to pass a sentence of imprisonment for a term exceeding the term provided for conviction in a summary trial under such other law.
(3) A Special Court may, with a view to obtaining the evidence of any person suspected to have been directly or indirectly concerned in, or privy to, an offence under this Act, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof and any pardon so tendered shall, for the purposes of Section 308 of the Code, be deemed to have been tendered under Section 307 thereof.
(4) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under S. 439 of the Code and the High court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under Section 12A."
28. We are concerned in this case with Clause (f) of sub-section (1) of Section 12AA. Under Clause (f) of sub-section (1) of Section 12AA, notwithstanding anything contained in the Code, all the offences under the Act of the 1981 have to be tried in a summary way. The provisions of Sections 262 to 265 (both inclusive) of the Code are to be applied to such trials as far as may be. The proviso to Clause (f) of sub-section (1) of Section 12AA lays down that in the event of any conviction in a summary trial under sub-section (1) of Section 12AA, it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years.
29. It is relevant to note, under Section 12AC of the Act of 1981, save as otherwise provided in the Act of 1981, the provisions of the Code including the provisions as to bail and bonds are made applicable to the proceedings before a Special Court. By a fiction, "Special Court" is deemed to be a Court of Session and the person conducting a prosecution before a Special Court is deemed to be a Public Prosecutor for the purpose of the provisions of the Code applicable to the proceedings before a Special Court.
30. The word "Summary" is not defined either in the Act or in the Act of 1981 or in the Code.
31. The meaning of the word "Summary" has been stated in Black's Law Dictionary With Pronunciation, Fifth Edition, on Page 1287, as under :
"Summary, n. An Abridgment; brief; compendium; digest; also a short application to a court or judge, without the formality of a full proceeding.
Summary, adj. Short, concise; immediate; peremptory; off-hand, without a jury, provisional; statutory. The term as used in connection with legal proceedings means a short, concise, and immediate proceeding."
32. A summary proceeding is a proceeding by which a cause or controversy is settled. In a summary proceeding, proceeding, trial is conducted and case is disposed of in a prompt and simple manner, out of the regular course. In the sphere off procedure, proceedings can be said to be summary when they are short and simple in comparison with regular proceedings.
33. The mandate of law in Clause (f) of sub-section (1) of Section 12AA has, as is clear from the Preamble to the Act of 1981, the object of speedy disposal of the offences. The Act of 1981 does not lay down with regard to the procedure to be followed in trying the offences in a summary way. From the absence of such provision and reference to Sections 262 to 265 of the Code which relate to summary trials, it can reasonably be concluded that the Legislature intended that offences have to be tried adopting the procedure laid down in Sections 262 to 265 of the Code.
34. Chapter XXI of the Code, which contains Ss. 260 to 265, deals with summary trials. As observed earlier, the object of trying a case in a summary way is to secure, obtain and accomplish speedy disposal of cases. Section 262 of the Code says that in trials under Chapter XXI, the procedure specified in the Code for the trial of summons case has to be followed. But in the event of any conviction in a summary trial, the limit of the term of sentence of imprisonment is three months.
35. Indeed, it is true, the provisions of Section 262 of the Code are imperative and peremptory. A breach thereof would amount to an illegality and not an irregularity. In all summary trials, the summons case procedure has to be followed irrespective of the nature of the case. Section 263 relates to the record in summary trials and lays down that in every case tried summarily, the Magistrate shall record in such form as the State Government may direct, the particulars stated therein. The Register containing the particulars mentioned in the section forms the record in the summary trial. Section 264 lays down that in every case tried summarily in which the accused does not plead guilty, the Magistrate must record the substance of the evidence and the judgment that is delivered must contain a brief statement of the reasons for coming to a particular finding.
36. Section 260(2) of the Code reads :
"(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 re-hear the case in the manner provided by this Code."
37. A reading of this provision would indicate that 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 re-hear that case in the manner provided by the Code. A learned single Judge of this Court in Gadag Co-operative Textile Mills Ltd. v. State of Karnataka, ILR 1988 Kant 1489, with reference to the question involved in this case, after considering the provisions contained in Ss. 12A and 12AA of the Act of 1981, observed :
"Thus, the perusal of this Section would go to show that if the Special Judge thinks at any state of the trial that the punishable that might be necessary to meet the ends of justice in a particular case is required to be more than 2 years then he has to follow the regular procedure and once he follows the regular procedure i.e., the procedure prescribed for a trial other than a summary trial, the trial will have to be held as per the procedure prescribed for the warrant cases. When this is the basic idea underlying Section 12A and Section 12AA, then the offence punishable under Section 3 read with Section 7 of the Act does not cease to be a warrant case, merely because for the purpose of speedy disposal of the cases, sub-section (f) prescribed that trial of such cases should be normally the one prescribed by Sections 262 to 265, Cr.P.C.
38. I am in respectful agreement with the said view.
39. In the instant case, the learned Special Judge even before the commencement of the trial of the offence, decided to try the offence adopting the procedure prescribed for the trial of warrant cases.
40. The question is, whether this step taken by the learned Special Judge has rendered the proceedings, staring from the commencement of the proceedings and ending with the passing of the order on 9-11-1988, vitiated.
41. Having carefully examined the provisions of law bearing on the question, I am disposed to hold that the step taken by the learned Special Judge to try the offence as a warrant case is not illegal and has not tainted the proceedings with illegality. Indeed, it is true, as provided by Clause (f) of sub-section (1) of Section 12AA of the Act of 1981, the offence alleged against the petitioners has to be tried in a summary way applying the provisions of Sections 262 to 265 (both inclusive) of the Code as far as may be. This would be so, notwithstanding the fact that the offence falls within the ambit of the expression "warrant case" as defined in the Code.
42. I have already noticed that under Section 12AC of the Act of 1981, save as otherwise provided in the Act of 1981, the provisions of the Code have been made applicable to the proceedings before a Special Court. Section 260(2) of the Code is not excluded from being applied to the trial of the offences by any provision of the Act of 1981. Perforce, it has to be held that the provisions contained in Section 260(2) of the Code are applicable to the proceedings before a Special Court. It can be presumed that the learned Special Judge was aware of the provisions contained in Clause (f) of sub-section (1) of Section 12AA of the Act of 1981 and that in spite of the said provisions, he decided to try the offence as a warrant case. If he thought that the case of the petitioners should be tried as a warrant case and, therefore, proceeded to act accordingly, in exercise of the powers under the Code, no exception, must less valid and tenable, can be taken against such a course. It is undeniable that the accused has various privileges and valuable rights in a warrant case which he has not in a summons case. Only where a procedure prescribed for summons case is followed in trying an offence, which is triable as a warrant case, the trial would be vitiated, the prejudice to the accused being implicit.
43. Even assuming for the sake of arguments, without so deciding that the provisions contained in Section 12AA(1)(f) of the Act of 1981 are intended to be observed strictly to ensure the achievement of object of speedy trial, non-compliance or non-adherence to the said provisions, in my view, will not invalidate or vitiate the proceedings. The Supreme Court in Chittaranjan Das v. State of West Bengal, , dealing with the question of utility and purpose of procedure in a criminal trial, laid down (para 7) :
"(7) It is quite clear that if the charge mentions an unduly long period during which an offence is alleged to have been committed, it would be open to the criticism that it is too vague and general, because there can be no dispute that the requirement of Section 222(1) is that the accused person must have a reasonably sufficient notice as to the case against him. The basic requirement in every criminal trial, therefore, is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which he is to face, and the validity of the charge must in each case be determined by the application of the test, viz., had the accused a reasonably sufficient notice of the matter with which he was charged ? It is quite conceivable that in some cases by making the charge too vague in the matter of the time of the commission of the offence an accused person may substantially be deprived of an opportunity to make a defence of alibi, and so, the criminal Courts naturally take the precaution of framing charges with sufficient precision and particularity in order to ensure a fair trial; but we do not think it would be right to hold that a charge is invalid solely for the reason that it does not specify the particular date and time at which any offence is alleged to have been committed. In this connection, it may be relevant to bear in mind that the requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the Legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by Ss. 535 and 537 Cr.P.C."
44. If these principles are applied to the question raised, it would be clear that the provisions contained in Clause (f) of sub-section (1) of S. 12AA of the Act of 1981 are not mandatory. If they were to be so, the Legislature would have indicated its intention in that behalf by clearly saying that the proceedings held in violation of or in disobedience to the provisions would be void. May be, it might be stated, the provisions in clause (f) of sub-s. (1) of S. 12AA are intended to be observed. But their breach, in my considered view, does not necessarily vitiate the trial.
45. In this case, there is no question of prejudice to the petitioners on the count of their case being not tried in a summary way. The procedure adopted by the learned Special Judge in trying the offence has given the petitioners the advantages and privileges the accused has in a warrant case when compared to the advantages and privileges he gets in a summons case. Viewed from any angle, I find it difficult to agree with the learned counsel for the petitioners that the decision taken by the learned Special Judge to try the case of the petitioners as a warrant case and the trial of the offence by him adopting the procedure prescribed for the trial of warrant cases is illegal. The decision is a permissible decision under law. Certainly it is not opposed to law. It cannot vitiate and has not vitiated the proceedings.
46. For all the aforesaid reasons, I hold that the procedure adopted by the learned Special Judge to try the offence alleged against the petitioners is not illegal or incorrect or improper. There are absolutely no grounds to quash the proceedings. The petitioners have failed to make out any case for the exercise of inherent jurisdiction of this Court under S. 482 of the Code.
47. The order dated 9-11-1988 appears to be absolutely correct and sound. It appears that under a bona fide impression that the licence issued in favour of petitioner No. 1 was in terms of the contents of Form B of the Order and by sheer inadvertence occasioned by the failure on the part of the Sub-Inspector of Police to carefully go through the contents of Ex. P-2, the licence, it was mentioned in Column No. 7 of the charge-sheet that both the petitioners had contravened Condition No. 6 of the licence issued in favour of petitioner No. 1. It appears, the same mistake came to appear in the charge framed against the petitioners in writing. Condition No. 6(1) of Form-B of the Order reads :
"6. The licensee shall not :-
(i) Have in his possession or under his control stock in excess or short of the net quantity of Edible Oils revealed by his accounts."
48. The certified copy of the licence issued in favour of petitioner No. 1 produced before me for perusal by the learned counsel for the petitioners would show that it is not strictly in terms of the contents of Form-B of the Order. Condition No. 6 in Form-B, extracted earlier, finds place in the licence issued in favour of petitioner No. 1 as Condition No. 8(1).
49. It has to be remembered that the charge framed against the petitioners in writing alleges that on 7-8-1985 at about 5 p.m. they were found in possession of 55 tins of Dalda over and above the stock indicated in the Stock Book and the documents available in the shop and that thereby they had contravened Condition No. 6 of the Licence. The stand taken by the petitioners during the course of their statutory examination to which I have adverted to earlier, would show that 55 tins of Dalda were, over and above the stock indicated in the Stock Book and the other documents available in the shop. Of course, their defence is that the tins had been just arrived and some more tins were yet to arrive.
50. Whether the evidence let in by the prosecution establishes the offence alleged against the petitioner or not, and whether the defence projected by the petitioners is acceptable or not are the matters lying within the province of the functions of the learned Special Judge. It is neither desirable nor advisable to express any view on the merits of the prosecution and the defence in these proceedings. But, suffice it to state that the learned Special Judge by farming the charge in clear and unambiguous language, told the petitioners as precisely and concisely as possible of the matter with which they were charged. It can be said that the essence of the Criminal Procedure, namely, the necessity of a system of written accusation, specifying a definite criminal offence, has full compliance in the instant case. To repeat, the charge framed against the petitioners gives notice to the petitioners in sufficient clearance and certainty the offence alleged against them and what the prosecution intends to prove and which case they have to meet.
51. When the proceedings were at the concluding stage, the Public Prosecutor noticed the defect in the charge-sheet as well in the charge mentioning wrongly the condition contravened as Condition No. 6 instead of Condition No. 8(1). He applied for the amendment of the charge. The learned Special Judge giving opportunity to the petitioners to file their objections and on careful consideration of the entire material, held that the prayer made by the prosecution was just and proper and that it was required to be granted in the interest of justice. The order, in my opinion, is flawless and free of any infirmity. The learned Special Judge, after granting the request, he observed that the necessary amendment in terms of request may be made and has directed to record the plea of the petitioners afresh to the charge to be amended pursuant to his order. He has given liberty to the prosecution to adduce additional evidence, if any, and to the petitioners to recall any witness already examined for further cross-examination. There are absolutely no grounds to disturb the well reasoned order made by the learned Special Judge. I, therefore, hold that the order dated November 9, 1988 is correct and proper, calling for no interference.
52. In the result, for all the reasons aforesaid, I find no merit in this petition. It deserves dismissal. It is accordingly dismissed.
Send back the record and proceedings in Special Case No. 3/86 to the Special Court, Bijapur, forthwith along with a copy of this order. The learned Special Judge is hereby directed to dispose of the case as early as possible.
53. Petition dismissed.