- (1.) THIS is an application in revision by accused Chhittar Singh, who has been convicted by the Sub-Divisional Magistrate, Kishangarh, under secs. 54 (d) and 57 of the Rajasthan Excise Act, 1950, and sentenced to 1-1/2 and 1 month's rigorous imprisonment respectively. He had filed an appeal which was heard by the learned Addl. Sessions Judge, Kishangarh, but since it was dismi-sed, he has approached this Court.
(2.) I have gone through the record of the trial court and find that this case has not been tried in accordance with the procedure laid down by the Code of Criminal Procedure. It is clear from the record of the trial court that the petitioner was examined and thereafter a charge was framed and he was convicted on his plea. It may be pointed out that the offence under sec. 54 of the Rajasthan Excise Act is punishable with imprisonment for a term which may extend to 2 years and therefore it is triable as a warrant case. Sec. 252 Cr. P. C. lays down the procedure which is to be followed by a Magistrate in trying a warrant case which is instituted otherwise than on a police report. According to this procedure the Magistrate should first hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution. It is only upon taking all the evidence referred to in sec. 252 that he should proceed to examine the accused and if he finds that no case is made out against him, then he should be discharged. If he finds that there are grounds for presuming that the accused has committed an offence triable under Chapter 21 he should frame a charge against the accused. The charge shall then be read and explained to the accused. If the accused pleads guilty, the Magistrate must record that plea and triad it is left to his discretion to convict him thereon. If the accused does not plead guilty, and wants to enter on his defence, then he should record his defence evidence and then decide the case. It is clear that in the present case the Magistrate straightaway proceeded to examine the accused as if he was trying a summons case. It seems that the Magistrate was aware of the fact that the case was triable as a warrant case and that it why he framed a charge, but he seems to have made a confusion between the procedure laid down in secs. 251-A and 252 Cr. P. C. Learned Dy. Govt. Advocate has tried to support the Magistrate's action by saying that the report made by the Excise Inspector was as good as a police report and hence the Magistrate could proceed under sec. 251-A. It has been pointed out that; sec. 44 of the Rajasthan Excise Act, 1950, provides that an Officer of the Excise Department not below such rank as the Government may prescribe, may investigate into any offence punishable under that Act and that he may exercise the same powers in respect of such investigation as an Officer in-charge of a police station may exercise in a cognizable case under the provisions of Ch. 14 of the Code of Criminal Procedure, 1898. It is true that sec. 44 (2) of the Rajasthan Excise Act, 1950, enables an officer referred in sub-sec. (1) to exercise the same powers in respect of any investigation mentioned therein as an officer incharge of the police station may exercise in a cognizable case under the provisions of Chapter 14 of the Code of Criminal Procedure. But this does not mean that the report of an excise officer would be turned into the report of a police officer. Sec. 251-A of the Criminal Procedure Code clearly lays down that the procedure provided therein should be followed only when a case is instituted on a police report. See. 252 then provides that if there is any case which is instituted otherwise thane on a police report, then the procedure laid down thereafter should be followed. The Code of Criminal Procedure thus clearly provides two kinds of procedure for the trial of warrant cases and the procedure to be followed in a case instituted on a police report is different from the procedure to be followed in a case instituted otherwise than on a police report. A similar view was adopted in State vs. Bhagwana (S. B. Cr. Rev. 27 of the 1957, decided by this court on 13. 1. 58) and also In Re Pavadia Gaundon (1 ). Under these circumstance, the conviction of the petitioner which proceeds on his mere statement cannot be upheld and the case must go back for re-trial according to law. The revision application is therefore allowed. The conviction of the petitioner under sec. 54 (d) and 57 of the Rajasthan Excise Act is set aside. The case be sent back to the trial court for re-trial according to law in the light of the above observation. .;