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MADHYA BHARAT HIGH COURT, INDORE BENCH
NEVASKAR, SAMVATSAR, JJ.
The State - Appellant
Vs.
Prakashchand - Respondent
Criminal Appeal No.103 of 1952
Decided On : 15-03-1955
CRIMINAL LAW - ESSENTIAL SUPPLIES (TEMPORARY POWERS) ACT, 1946 - S.12 - SUMMARY TRIAL - PROCEDURE - CHANGE OF PROCEDURE - S.540, CRIMINAL P.C. - EXAMINATION OF WITNESSES - POWER OF COURT - EXERCISE OF - MERITS OF THE CASE - CONVICTION - INTERFERENCE IN APPEAL AGAINST ACQUITTAL.
Fact of the Case:
Accused were prosecuted for violation of Clauses 3 and 8 of the Madhya Bharat Cotton and Yarn Dealers' Licensing order and Clause 15(1) of the Madhya Bharat Cotton Textile Control Order. The trial court acquitted the accused. The State appealed against the acquittal.
Finding of the Court:
The court held that the trial court was justified in refusing to change the procedure from summary to regular warrant case. The court also held that the prosecution was not entitled to examine witnesses in addition to those which were given in the initial list under S.540, Criminal P.C. On merits, the court held that the prosecution evidence was not sufficient to prove the guilt of the accused beyond reasonable doubt.
Issues: 1. Whether the trial court was justified in refusing to change the procedure from summary to regular warrant case? 2. Whether the prosecution was entitled to examine witnesses in addition to those which were given in the initial list under S.540, Criminal P.C.? 3. Whether the prosecution evidence was sufficient to prove the guilt of the accused beyond reasonable doubt?
Ratio Decidendi: 1. Once the requisite condition for exercise of power under S.12, Essential Supplies (Temporary Powers) Act, to try the case summarily had come into existence and the Magistrate in exercise of his discretion had decided to try the case summarily he could not by any provision of law be made to alter the procedure. 2. The power under S.540, Criminal P.C. is not to be exercised to fill up the gaps in the prosecution case. 3. The initial presumption of innocence is reinforced and considerable weight attaches to the view of the trying Judge regarding the credibility of the witness whom he had privilege to see and hear. And it is only where the decision could not have been legally reached on the proved circumstances of the case that an inteference in appeal against acquittal is justified.
Final Decision: The appeal was dismissed.
NEVASKAR, J.
Accused Prakashchandra. Roshanlal and Ganeshprasad were prosecuted under S.7, Essential Supplies (Temporary Powers) Act read with Cl. 15(1). Cotton Textile Control Order and Ss.3 and 18, Madhya Bharat Cloth and Yarn Dealer's Licensing Order, 1949 before the Municipal Magistrate, Indore (who is the Magistrate of First Class) who found them not guilty and acquitted them.
2. This is an appeal by the State against the order of acquittal passed by the Magistrate.
3. Prosecution case in brief is that Mr. Sinha of the Enforcement Branch on coming to know that the cloth was being sold at the shop of the accused in Krishnapura at rates higher than those fixed by law decided to lay a trap and effect a raid. He therefore selected a decoy witness Babulal Asava who was given marked notes of Rs.75 and sent to the shop in question for making purchase of Cotton Cloth on 18-10-1950. It is said that Babulal approaches the shop of the respondent in Krishnapura and purchases a 'Than' of long Cloth (Harak) for Rs.43-10-0 and a pair of 'dhoties' for Rs.16-12-0.
It is said that no cash memo was given to Babulal. The amount thus realised from Babulal at the shop of respondent was in excess of the control price for each of the commodity aforesaid. The total excess amount realised accprding to the prosecution was Rs.15-14-6. It was further alleged that the licence of the shop was suspended on 30-8-1950 for a period of two months and that the impugned transaction was of this period.
The accused were therefore prosecuted for violation of Clauses 3 and 8 of the Madhya Bharat Cotton and Yarn Dealers' Licensing order and Clause 15(1) of the Madhya Bharat Cotton Textile Control Order. Questions as regards the merits of the decision of the trial Court and those relating to procedural errors were raised in this appeal.
4. As regards the procedural errors it was contended both in the Court below and before this Court that the learned Magistrate ought to have tried the case as a regular warrant case and summary trial ought not to have been resorted to. The contention shortly stated is that the Court initially ordered the case to be tried summarily on an application, submitted on behalf of the prosecution, by its order dated 9-12-1950.
Section 12, Essential Supplies (Temporary Powers) Act, justified this order. Later on a question regarding placing of a certain report on record was raised. The Magistrate held that the document could not be brought on record. On a revision petition it was held that the document was liable to be placed on record. At this stage the prosecution wanted the case to be tried as a regular warrant case. This change of procedure at the stage at which the case was, was objected to on behalf of the accused and the Magistrate did not agree to try the case as a regular one.
5. Since the trial was commenced as a summary one in pursuance of an application submitted on behalf of the prosecution the Magistrate, having once started the case as such, was justified in refusing to change the procedure. Once the requisite condition for exercise of power under S.12, Essential Supplies (Temporary Powers) Act, to try the case summarily had come into existence and the Magistrate in exercise of his discretion had decided to try the case summarily he could not by any provision of law be made to alter the procedure.
The trial therefore held in this manner is not legally vitiated and no point can be made out of this refusal in an appeal against acquittal.
6. The second point regarding procedural error sought to be urged before us was that the prosecution were not allowed to examine witnesses in addition to those which were given in the initial list which they had right to do under S.540, Criminal P.C.
7. It is said that in the statement of Mr. Sharma certain documents were produced on behalf of the prosecution. Mr. Sharma had no personal knowledge about them. This fact was brought out in his cross-examination. An application thereupon was made to
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