- (1.) THIS is a reference by the Sessions Judge of Udaipur for enhancement of the sentence passed on Manaklal of Kurawar.
(2.) THE facts are that Manaklal was prosecuted for an offence under sec. 54 (a) of the Rajasthan Excise Act (No. II) of 1950. THE trial was conducted as if it was a summons case, and the Magistrate eventually sentenced the accused Manaklal to a fine of Rs. 51/ -. THEreupon, there was a revision by the State to the Sessions Judge for enhancement of the sentence, and the Sessions Judge has recommended by this reference that the sentence should be enhanced, and certain utensils, which were recovered, should be confiscated. Manaklal, opposite party, has not appeared before us. THE learned Assistant Government Advocate urges that there has been an illegality in the mode of trial in this case, and, therefore, the conviction should be quashed and the case be sent back for re-trial according to the procedure provided by the Code of Criminal Procedure. Offences under sec. 54 (a) of the Rajasthan Excise Act, 1950, are punishable with imprisonment for a term which may extend to two years, or with fine, or with both. Obviously, therefore, the trial of an offence under any clause of sec. 54 has to be conducted in the form of a trial for warrant cases. The Magistrate, in the beginning, thought that the offence came under sec. 57 triable as a summons case. In the end, however, he convicted the accused under sec. 54 (a ). It may be pointed out that the charge-sheet presented against the accused was under sec. 54 of the Rajasthan Excise Act. It is obvious therefore, that the case which should have been tried as a warrant case was actually tried as a summons case. The learned Sessions Judge also knew of this illegality, but he says that as the accused did not come up in revision before him against the procedure adopted and as there was no prejudice to the accused, there was no necessity to order a re-trial, the irregularity being curable under sec. 537 Cr. P. C. We are of opinion that this view of the learned Judge is incorrect, and as in this case the trial was conducted in a manner difference from that prescribed by the Code, there was a clear illegality and the trial was vitiated, and there was no question of curing any irregularity. The first case on the point is Subrahmania Ayyar vs. King Emperor (1) (ILR XXV Mad. , 61 ). In that case, the accused had been charged with a large number of offences against the provisions of secs. 233, 234 and 235 (1) Cr. P. C. It was held by their Lordships of the Privy Council that - "the disregard of an express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by sec 537 of the Criminal Procedure Code. Such a phrase as "irregularity" is not appropriate to the illegality of trying an accused person for more different offences at the same time, and those offences being spread over a longer period than by law could have been joined together in one indictment. " The next case to which reference may be made is Emperor vs. Chinnapayan (1) (ILR 29 Mad. , 372. ). It was held in that case that - "where a Magistrate in trying a warrant case does not adopt the course prescribed by sec. 252 of the Code of Criminal Procedure, but convicts the accused on his own admission without taking evidence and without framing a format charge, such procedure is not a mere irregularity and the conviction will be set aside. " This case is on all fours with the case before us. Following this case the same view was held by the Nagpur High Court in Gayaprasad vs. Emperor (2) (AIR 1932 Nag. , 111), and by the Calcutta High Court in Sufal Golai vs. Emperor (3) (AIR 1938 Cal. , 205. ). The matter came up for consideration again before their Lordships of the Privy Council in Kottaya vs. Emperor (4) (AIR 1947 P. C. 67.), and the following observations were made at page 69 - "when a trial is conducted in a manner difference from that prescribed by the Code as in 28 I. A. 257, 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 sec. 537, and none the less so because 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 view taken in Subrahamania Ayyar's case (5) (ILR XXV Mad. 61.) was thus re-affirmed and it was laid down that where the trial is held in a manner different from that prescribed by the Code, it is bad and no question of curing the irregularity can arise. The same view was taken by the Supreme Court in Magga vs. State of Rajasthan (6) (AIR 1938 Cal. , 205.), and it was held that where a trial is held in violation of the provisions of the Code, and that violation goes to the root of the matter, the illegality is of such a character that it vitiates the whole proceedings. In the case before us, the trial was held in the manner prescribed for a summons case when it should have been held in the manner prescribed for warrant case. This defect is such that it is not curable by any of the provisions in Chapter XLV of the Code of Criminal Procedure. The only distinction that is found in this case is that the accused has not thought fit to appeal or to come in revision against the mode of trial That, however, in our opinion, should make no difference because a trial being held in a manner not warranted by the Code, it is of no importance whether the accused comes up in appeal or in revision. In the view that we have taken, the reference in the form in which it was made to us, must be rejected. We, however, set aside the proceedings resulting in the conviction of Manaklal and order a re-trial according to the provisions of the Code of Criminal Procedure. .;