STATE OF GUJARAT V. BACHUBHAI NAGINBHAI SHAH AND ORS. ON 21 NOVEMBER 1994
| Citation | (1996) 2 GLR 643 |
| Date of Judgement | 21 November 1994 |
| Court | Gujarat High Court |
| Case Type | Criminal Revision Application |
| Appellant | State of Gujarat |
| Respondent | Bachubhai Naginbhai |
| Bench | Justice D.G. Karia |
| Referred | Section 167(5) of code of criminal Procedure 1973, Section 262 and section 260 and section 65, 66 , 81. |
FACTS OF THE CASE
The above mentioned case is in the form of a criminal revision application . The respondents are alleged to have committed offence punishable under section 65(e),66(1),81 and 85(1)of the Bombay Prohibition Act. At about 9-15 p.m. on July 17, 1982, respondent Nos. 1 to 14 have been alleged to have bought and consumed the intoxicant in contravention of the provisions of the Bombay Prohibition Act, or any rule, regulation or order made or of any licence, permit, pass or authorisation issued thereunder, at the cabin of respondent No. 15, who in contravention of the provisions of the Act and without any licence, pass or permit, sold the intoxicant to respondent Nos. 1 to 14. As is recorded by the learned Sessions Judge, the complaint is a long and detailed one. The respondent Nos. 1 to 14 were arrested on July 17, 1982, whereas the respondent No. 15 was arrested on July 19, 1982. Thereafter, the charge-sheet was submitted on October 13, 1983. The charge-sheet was thus submitted after the lapse of the period of one-year, two months and twenty-six days, after arrest of the respondents-accused.
The respondents, therefore, submitted the application Exh. 29 on June 7, 1984 contending, inter alia, that the offences alleged against the accused persons were triable as summary cases. The charge-sheet in respect of the offences alleged against the accused persons was not presented within a period of six months from the date on which the accused persons were arrested.
The accused persons, therefore, prayed to be discharged on the ground that the investigation was not completed within the period of six months from the date of their arrest nor the officer making the investigation sought extension of time in investigation into the offences and that there were no reasons to continue the investigation beyond the period of six months and no such order was passed by the learned Magistrate. The accused further stated that in the trial for the offences against them under the Bombay Prohibition Act, the Magistrate had to follow the procedure prescribed under the Code of Criminal Procedure for the trial of summary cases in which the appeal lies and pursuant to Section 262 of the Code of Criminal Procedure, the trial against the accused persons would be the trial of summons cases.
167(5) If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of investigation beyond the period of six months is necessary.
In response to the criminal revision application the case is registered under the in the court of Gujarat High Court .
ISSUE
- Whether the offences enumerated above under the Bombay Prohibition Act, 1949, wherein the conviction and sentence prescribed is three years is a warrant triable or summons triable case?
- Whether in a warrant triable case, Section 167(5) of the Cr. P.C. is applicable?
- Whether Section 116 of the Bombay Prohibition Act and Chapter XXI of the Cr. Procedure Code, 1973 would be applicable?
ARGUMENTS
When the case was scheduled for hearing the issue was formulated by cited Judgement which were related to the case by the knowledgeable Lawyers.
In the case of Sureshbhai K. Desai v. State of Gujarat reported in 1983 Cri. LR 115, which was sought to be relied upon on behalf of the respondents, this Court [Coram: V.V. Bedarkar, J. (as he was then)], while dealing with Section 167(5) of the Code of Criminal Procedure, held that it was necessary for all the Magistrates in the State to see that police do not unnecessarily linger on in submission of charge-sheet beyond one year or six months. If they have not submitted the charge-sheet upto six months for summary triable cases, the Court may consider as to why the proceeding should not be stopped for not completing the investigation within a period of six months. Thereafter, the Court may hear the prosecution and decide the matter. It is necessary that the provisions of Section 167(5) of the Code are properly followed. It is true that in summons triable case, the investigation has to be concluded within a period of six months from the date of arrest of the accused persons in accordance with Section 167(5) of the Code. However, it would not determine whether a particular case is summons triable case or warrant triable case. That would depend upon a case relating to an offence punishable with death .
The Division Bench of the Bombay High Court consisting of Chainani, C.J. and Tarkunde, J. (as they were then) has held in case of Bandulal Balaprasad v. State reported in AIR 1962 Bombay 258, that offence under Section 65 of the Bombay Prohibition Act being punishable with an imprisonment extending upto three years has to be tried as a warrant case in view of Section 262, Cr. P.C. read with Section 116 of the Bombay Prohibition Act. The learned Sessions Judge tried to distinguish this case of Bandulal (supra) stating that the old Code of Criminal Procedure was repealed and the Code of Criminal Procedure, 1973 came into force with effect from April 4, 1974, and hence the ratio in the case of Bandulal (supra) would not be applicable in the facts of the present case. In my opinion, the approach adopted by the learned Sessions Judge is not correct, inasmuch as the trials for the offences under the Bombay Prohibition Act are to be conducted by following the procedure prescribed in the Code of Criminal Procedure for the trial of summary cases. As observed hereinabove, Chapter XXI of the Code of Criminal Procedure provides the procedure for summary trials. However, having regard to quantum of sentence, a case under offence of the Bombay Prohibition Act may be warrant triable case. Section 116 of the Bombay Prohibition Act provides to try the offences under the Act according to summary procedure. Chapter XXI deals with summary procedure. On true construction of Sections 260 and 262 of the Code, the case triable as summons case might become a warrant triable case, having regard to the sentence, prescribed for the offence under the said Act. In my opinion, therefore, the learned Sessions Judge, has not considered the above ruling of the Bombay High Court in its proper perspective. A case wherein an offence under Section 65 of the Act, providing sentence to extent of three years is alleged, has to be tried as warrant case.
imprisonment with life or imprisonment for a term exceeding two years or otherwise. In the facts of the present case, the aforesaid case of Sureshbhai K. Desai (supra) will not be applicable.
The above mentioned are the arguments which were been presented by both the sides in the proceeding in the case.
JUDGEMENT
In the result after hearing of all arguments from both the sides the judgment was passed by respective bench in the present case that is as follows :
In view of the above legal position, the offence under the Bombay Prohibition Act prescribing sentence exceeding three months would be a warrant triable case, as per the discretion of the learned Magistrate under Section 260 of the Code of Criminal Procedure, 1973. In the instant case, when the learned Magistrate has come to clear and categorical conclusion that the offence against the respondent-accused was warrant triable case and thus the discretion having been exercised properly and judicially, it was not open to the learned Sessions Judge to interfere with it. In a warrant triable case, provisions of Section 167(5) of the Code of Criminal Procedure, 1973 are not applicable. The above mentioned case is a new division of the history creation the case is cited judgement as mentioned in the above case. The Criminal Revision Application Respect was been cited in reference to following case.
In the result, this Revision Application is allowed. The impugned judgment and order of the learned Sessions Judge is quashed and set aside and that of the learned Magistrate is restored. Rule made absolute accordingly.
REFERENCES:
[2]https://www.courtkutchehry.com
This Article is written by Sukhman Kapoor of Panjab University , Chandigarh , Intern at Legal Vidhiya.
