IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL WRIT PETITION NO. 113 OF 2022 Suhas Ratnakar Morey Aged 43 years, Occ: Service, R/O. Flat no. 105 Nilkanth Apartment, Pandey Layout, Khamla Nagpur 440022. PETITIONER Versus Dhanraj Tulshiram Khaparde, Age: Major, Occu: Retired, R/O. Matru Chaya, Plot No. 105, Swami Colony Akar Nagar, Katol Road, Nagpur-440013. RESPONDENT - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Mr. Akshay A. Naik, Advocate for the Petitioner.

Mr. Mayukh M. Awode, Advocate for the Respondent.

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CORAM : AVINASH G. GHAROTE, J.

DATED : 26^th APRIL, 2022.

ORAL JUDGMENT :-

1. Heard Mr. Naik, learned Counsel for the petitioner and Mr. Awode, learned Counsel for the respondent. Rule. Rule returnable forthwith.

2. By an order dated 23/02/2022, while issuing notice, the contention advanced by Mr. Naik, learned Counsel for the petitioner in this regard, have been summarized as under :

(A) In a case of a penalty under Section 27(1) of the Consumer Protection Act, 1986, as the State Commission under Section 27(2) of the said Act has been conferred with the power of a Judicial Magistrate, First Class for trial of offence under the said Act, and the State Commission shall be deemed to be a Judicial Magistrate, First Class for the purpose of the Cr.P.C., by virtue of Section 27(3) of the said Act, all offences under the said Act of 1986, are to be tried summarily.

(B) In view of Section 27(2) & (3) of the said Act, the offences which are punishable under Section 27(1) of the said Act shall have to be tried in a summary manner, as contemplated by Section 260 of the Cr.P.C., and Section 262(1) of Cr.P.C. directs that the procedure specified in the Code for the trial of summons cases shall be followed for a summery trial under Section 260 of Cr.P.C., except as otherwise indicated.

(C) The trial of summons cases by the Magistrate is covered in Chapter XX of the Cr.P.C. and Section 254 of Cr.P.C. indicates that if conviction is not there under Section 252 or 253, on account of the accused having not pleaded guilty, the procedure as prescribed therein shall have to be followed, indicating that the Magistrate shall have to proceed to hear the prosecution and take all evidence as may be produced in support of the prosecution and also to hear the accused and take all evidence as he produces in his defence.

(D) This requirement of Section 254(1) of Cr.P.C. has not been followed by the learned State Commission while deciding an offence under Section 27(1) of the Consumer Protection Act and straight away affidavits have been directed to be filed by the accused, which is in total contradiction to the requirement of Section 254 r/w Section 260 of Cr.P.C. and Section 27(3) of the Consumer Protection Act.”

3. It is in continuation of the above, it is contended by Mr. Naik, learned Counsel for the petitioner that the procedure followed by the learned State Commission in conducting the matters under Section 27 of the C.P. Act, 1986, would indicate that there is absolute breach of the requirements of law, inasmuch as the learned State Commission by refusing to record the evidence of the complainant, permit cross-examination and so also permit leading of defence evidence, has violated the mandate of Section 27 (1) and (2) of the C.P. Act, 1986 as well as Sections 260, 262 and 254 of the Cr.P.C. This being so, it is contended that the entire procedure adopted by the learned State Commission in conducting the proceedings under Section 27 of the C.P. Act, 1986, being in contravention to the above provisions, was not sustainable and was liable to be quashed and set aside and the impugned orders were also likely to be rendered with the same fate.

4. It is also contended that while deciding the liability of the petitioner on the basis of the order suffered by him by the State Commission vis-a-vis the