Delhi High Court

Sarabjeet & Ors. vs State on 11 January, 2010

Author: V. K. Jain

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Crl.M.C. No. 458/2009

                               Date or Order: 11th January 2010

#      SARABJEET & ORS.                       ..... Petitioners
!                              Through:   Mr. Rajat Wadhwa, Adv.

                         versus

$      STATE                                  ..... Respondent
^                              Through:   Mr. Pawan Bahl, APP.

*      CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

       1.      Whether the Reporters of local papers
               may be allowed to see the judgment?      Yes

       2.      To be referred to the Reporter or not?   Yes

       3.      Whether the judgment should be
               reported in the Digest?                  Yes


: V.K. JAIN, J. (Oral)

1. This is a petition under Section 482 of the Code of Criminal

Procedure for quashing the order dated 19th January 2007,

whereby cognizance was taken and subsequent order dated 24 th

July 2007 whereby notice envisaged under Section 251 of the

Code of Criminal Procedure was given to the petitioner for the

offence punishable under Sections 323 and 325 of IPC read with

Section 34 thereof.

2. A perusal of the order dated 24th July 2007 would show that

the learned Metropolitan Magistrate passed a speaking order

stating therein that prima facie case is made out for the offence

under Sections 323/325/34 of IPC. Thus, the learned

Metropolitan Magistrate prima facie took the view that not only

the offence under Section 323 but also offence under Section

325 of the IPC was made out against the petitioner. Despite

that, he chose to frame a notice under Section 251 of the Code

of Criminal Procedure, instead of framing charge against him.

3. The offence under Section 325 of the Code of Criminal

Procedure, being punishable with imprisonment upto 7 years

and fine, is a Warrant Trial Case, though the offence under

Section 323 is a Summons Trial Case. The procedure for trial of

Warrant Cases, by Magistrate, has been prescribed in Chapter

XIX of the Code of Criminal Procedure. Section 238 of the Code

provides that when, in any Warrant Case, instituted on a police

report, the accused appears or is brought before a Magistrate at

the commencement of the trial, the Magistrate shall satisfy

himself that he has complied with the provisions of Section 207,

which requires copies of documents, statements, charge sheet,

etc. to be supplied to the accused. Section 239 of the Code

provides that if on considering the police report and the

document sent with it under Section 173 of the Code, and

examining the accused, if the Magistrate thinks necessary, and

after giving opportunity of hearing to the prosecution as well as

to the accused the Magistrate considers the charge against the

accused to be groundless, he shall discharge him, after

recording his reasons for discharging him. If, however, the

Magistrate is of the opinion that there is ground for presuming

that the accused has committed an offence triable under

Chapter XIX, he shall accordingly frame charge against the

accused. Thus, in a Warrant Trial Case it is mandatory for the

learned Magistrate to hear not only the prosecution, but also the

accused before he decides whether to discharge or to charge

him.

4. On the other hand, the procedure for trial of Summons

Cases, which has been prescribed in Chapter XX of the Code

provides, in Section 251, that when the accused appears or is

brought before the Magistrate, the particulars of the offence of

which he is accused shall be stated to him and shall be asked if

he pleads guilty or has any defence to make and it is not

necessary to frame a formal charge. Unlike Section 239 of the

Code, Chapter XX does not envisage discharge of the accused at

this stage. Therefore, if a Warrant Case is tried on a Summon

Case, the accused would be deprived of an opportunity to seek

discharge under Section 239 of the Code on the ground that

there are no reasonable grounds to charge him for the offence

complained of.

5. Section 259 of the Code provides that when in the course

of the trial of a Summons Case relating to an offence punishable

with imprisonment for a term exceeding six months, it appears

to the Magistrate that in the interests of justice, the offence

should be tried in accordance with the procedure for the trial of

Warrant Cases, he may proceed to rehear the case in the

manner prescribed for trial of Warrant Cases. Thus, it is

permissible for the Magistrate to try an accused in a Summons

Case in accordance with the procedure prescribed for trial of

Warrant Cases, but there is no provision in the Code for trying a

Warrant Case as a Summons Case.

6. In Pulukuri Kotayya vs. Emperor, AIR (34) 1947 Privy

Council 67, the Privy Council, inter alia, observed as under:-

"When a trial is conducted in a manner different from that prescribed by the Code, as in 28 IA 2575, the trial is bad, and no

question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under S.537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships' Board in 5 Rang 536, where failure to comply with S. 360, Criminal P.C., was held to be cured by Ss. 535 and 537."

7. In Public Prosecutor (AP) vs. Vaijnath & Anr. , 1971

Crl. L.J. 205, Andhra Pradesh High Court held that when a

Warrant Case is tried as a Summon Case it amounts to an

illegality and not an irregularity curable under section 537 of the

Code of Civil Procedure, 1898. In Dilip Kulkarni and ors. vs.

Bahadurmal Chowdary and Sons and Anr., 2005(2) ALD (Cri)

171, Andhra Pradesh High Court, inter alia, held as under:-

"Thus, it is obvious that the Code enables the Judicial Magistrate of First Class to convert a summary case either into a summons case and a summons case into a warrant case, but not vice versa. The only requirement for such conversion is that in the course of trial it should appear to the Court in the interests of justice that such conversion is needed. But if the

Magistrate conducts trial in a warrant case adopting summons procedure or a summons case by following the summary procedure, the trial is certainly vitiated."

8. Though the learned Magistrate has applied his mind to the

merit of the allegations made against the petitioner, the fact

remains that even if he had formed an opinion different from the

one taken by him, he was precluded in law from discharging

him, as he chose to adopt to procedure prescribed for the trial of

a Summons Case. There is no good reason for not trying the

petitioner in accordance with the prescribed procedure, when he

has come to this Court, at the earliest opportunity.

9. Since, the learned Metropolitan Magistrate could not have

frame notice under Section 251 of the Code of Criminal

Procedure in a warrant case and could not have adopted the

prescribed procedure for trial of summons case, the impugned