Mahant Kaushalya Das versus State of Madras

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A

MAHANT KAUSHALYA DAS

v.

STATE OF MADRAS

May 7, 1965

B [A. K. SARKAR, M. HIDAYATULLAH AND V. RAMASWAMI, JJ.]

¶7

Code of Criminal Procedure (Act 5 of 1898), ss. 243, 362(2)(A)- S. 243-Whether mandatory-Violation, if vitiates trial-If overrides s. 362(2)(A).

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•

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c D E	The appellant was arrested by the police and immediately produced before the Presidency Magistrate, Madras on a charge under s.4(1)(A) ofthe Madras Prohibition Act on the allegation that he was inp~ession ofacertain amountofGanja concealed in a woodenboxinhispre- mises without any permit. The appellant pleaded guilty and upon that pica, he was convicted by the Magistrate.Theappellant preferredan appeal totheHigh Court alleging,interalia,'thathewasanilliterate per- son, not acquainted with EnglishorTamilorwith any other South Indian languageandhe only knew Hindiasit was spokenin Uttar Pradesh, that the proceedings were rushed through with undue haste, that he did not really plead guilty to the charge and he had never under- stoodtheimplicationsofthe offenceorproceedings before the Magistrate. The High Court called for a report from 1he Presidency Magistrate who submitted thattheparticulars of the offence and the pleaofguilty by the appellant were explainedtothe appellant by aninterpreter-the Bench Clerk who had passed examinations in Hindi, and the appellant's allegations were false. Thereafter the High Court dismissedth.eappeal. Inappeal by certificate, the appelant,_interalia,_contendedthattheMagis- trate did not comply with the mandatory provisionsofs.243ofthe Code ofCriminal Procedure, that the appellant(hadbeen deprivedofthe substanceofa fair trial, that the convictionofthe appellant was legally invalid.
F G	HELD:Therequirementsofs.243ofthe Criminal Procedure Code are mandatory in character and a violationofthese provisions vitiates the trial and renders the conviction legally invalid. The requirementofthe section is not a mere empty formality but islamatterofsubstance in- tendedtosecure proper administrationofjustice. Itisimportant that thetermsofthe section are strictly complied with because the rightof appealoftheaccused depends upon the circumstance whether he pleaded guiltyornot and it is for this reason that the legislature requires thatthe exact words used by the accused in his pleaofguilty should, as nearly aspossible, be recorded in his own language in order to prevent any mistaketormisapprehension. [233 D-F]

c
D
E

The appellant was arrested by the police and immediately produced
before the Presidency Magistrate, Madras on a charge under s.4(1)(A)
ofthe Madras Prohibition Act on the allegation that he was inp~ession
ofacertain amountofGanja concealed in a woodenboxinhispre-
mises without any permit.
The appellant pleaded guilty and upon that
pica, he was convicted by the Magistrate.Theappellant preferredan
appeal totheHigh Court alleging,interalia,'thathewasanilliterate per-
son, not acquainted with EnglishorTamilorwith any other South
Indian languageandhe only knew Hindiasit was spokenin
Uttar
Pradesh, that the proceedings were rushed through with undue haste,
that he did not really plead guilty to the charge and he had never under-
stoodtheimplicationsofthe offenceorproceedings before the Magistrate.
The High Court called for a report from 1he Presidency Magistrate who
submitted thattheparticulars of the offence and
the pleaofguilty by
the appellant were explainedtothe appellant by aninterpreter-the
Bench Clerk who had passed examinations in Hindi, and the appellant's
allegations were false.
Thereafter the High Court dismissedth.eappeal.
Inappeal by certificate, the appelant,_interalia,_contendedthattheMagis-
trate did not comply with the mandatory provisionsofs.243ofthe Code
ofCriminal Procedure, that the appellant(hadbeen deprivedofthe
substanceofa fair trial, that the convictionofthe appellant was legally
invalid.

F
G

HELD:Therequirementsofs.243ofthe Criminal Procedure Code
are mandatory in character and a violationofthese provisions vitiates the
trial and renders the conviction legally invalid. The requirementofthe
section is not a mere empty formality but islamatterofsubstance in-
tendedtosecure proper administrationofjustice.
Itisimportant that
thetermsofthe section are strictly complied with because the rightof
appealoftheaccused depends upon the circumstance whether he pleaded
guiltyornot and it is for this reason that the legislature requires thatthe
exact words used by the accused in his pleaofguilty should, as nearly
aspossible, be recorded in his own language in order to prevent any
mistaketormisapprehension. [233 D-F]

¶10

Section 243 of th'e Code is a provision of a special character and according to well established rule of interpretation that special provision will take precedence and override the general provision of s. 362(2) (A) of the Code. [234 A-Bl • I

¶11

The violation of the procedure in s. 243 .of the Code was suffiH ciently serious to invalidate the conviction of the accused. It wag manifest from the record that the admission of the appellant had not been recorded "as nearly as possible in the words used by him", as required by s. 243 of the Code. [233 F. B-C]

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230 SlJPll.l!MB COURT REPORTS (1966) I S.C.R.

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Queen-Eniprt.'.~s v. Eru.l(udu, I.L.R. 15 ,\fad. 85, Slrailaba/a I>asee v. A Emperor, l.L.R. 6: ('al. 1127 and AJ11ku11di Lal v. Stale, A.LR. 1952 All. 212. approved.

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C1v1L APPEi.LAT!' JURISDICTION : Civil Appeal No. 131 of 1963.

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Appeal from the judgment and order dated April 29. 1963 u of the Madras High Court in Criminal Appeal No. 251 of 1963.

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E. C. Agarwala and P. C. Agarwala, for the appellant.

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A. Ranganadham Cherry and A. V. Rangam, for the respondent.

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c

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The Judgment of ll:c Court was delivered by

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Ramarn·ami, .J. 1 his appeal " brought by c .. rtificatc granted under Art. 134 ( 1) ( c) of the Constitution from a judgment of the Mdr;is High Court dated April 29, 1963 in Criminal Appeal No. 251 of 1963 affirming the convictinn of the appellant-Sri Mahant Kaushal ya Das under s. 4 ( 1 ) (a) of the Madras Prohibition Act and the sentence of one ycr Rigorous Imprisonment and a fine of Rs. 50 or in default rigorous imprisonment for one month.

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The appellant is the hereditary Mahant of Sri Bairaghi Matam -a Hindu Religious and Charitable Institution of a monastic nature. The appellant has been residing in the Matam premises, Elephant Gale, Madras which is a public place of worship. On March 22, 1963 at about I 0 a.m. the appellant was arrested by the police and immediately produced before the Vlfl Presidency Magistrate on the same day on a charge under s. 4( 1) (a) of the Madras Prohibition Act on the allegation that he was in possession of 3,960 gram.1 of Ganja concealed in a wooden box in the Matam premises without any permit. The appellant pleaded guilty to the charge and upon that plea he was convicted by the Mag'strate to rigorous imprisonment for one year and a fine Rs. 50, in default to rigorous imprisonment for one month. The appellant preferred Criminal Appeal No. 251 of 1963 to the High Court alleging that his eye-sight was very bad and defective, that he was an illiterate person, not acquainted with English or Tamil or with any other South Indian language and that he only knew Hindi as it was spoken in Uttar Pradesh. He also complained that he had no time to consult either his lawyer or his disciple1, that the proceedings were rushed through with undue haste, that he did not really plead guifty to the charge and

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E

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G

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KAUSHALYA DAS v. STATE (Ramaswami, !.) 231

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A that he never understood the implications of the offence or the proceedings before the Magistrate. The appllant file an affidavit in support of the appeal before the High Court m regard to these allegations. Kailasam, J. called for a report f~om

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. ' the VIII Presidency Magistrate with regard to the allegat10ns made in the affidavit of the appellant. On April 23, 1963 the

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B Magistrate submitted a report as follows :

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"The particulars of the offence were explained to the accused by the Interpreter. It was translated to accused in Hindi by Sri M. Sukumara Rao, Bench Clerk of this Court who has passed examination in C Hindi. The plea of guilty by the accused was also interpreted to the Court by Sri M. Sukumara Rao. The allegations contained in the affidavit are false."

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Thereafter Kailasam, J. confirmed the conviction and sentence and dismissed the appeal.

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D

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•

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Learned Counsel on behalf of the appellant put forward the argument that the Magistrate did not comply with the mandatory provisions of s. 243. Criminal Procedure Code, that the appellant has been deprived of the substance of a fair trial, and that the conviction of the appellant is legally invalid. It was also subE milted on behalf of the appellant that the necessary ingredients of the offence of possession of the contraband article under s. 4 (1 )(a) of the Madras Prohibition Act have not been established as a matter of law.

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It is necessary to reproduce, at this stage, the charge framed F by the VIII Presidency Magistrate against the appellant as well as the judgment pronounced in the case. The charge reads a~ follows:

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"On 22nd March 1963 at about 8 a.m. at No. I General Muthiah Mudali street in C-2 !fruits, the accused was found in possession of 3,960 grams of Ganja G concealed in wooden box in his Matam premises without any permit. Hence the charge."

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The judgment by the Magistrate reads as follows :

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H

"Judgment, dated 22nd March 1964 :-Accused produced. Pleads guilty. Found guilty. The quantity is very huge viz., 3,960 grams concealed in a wooden box. I convict and sentence him to rigorous imprisonment for one year and to pay a fine of Rs. 50 in default

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[1966] I S.C.R

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~32

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SUPllBl'llB COUllT REPORTS

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to rigorous imprisonment for one month. Confiscate property." Section 4 of the Madras Prohibition Act, 1937 (Madras Act JO of 1937) as amended by Madras Act 8 of 1958 states: "4. {l) Whoever-

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A

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_(_a)imports, exports, transports or possesses liquor orany intoxicating drug;•....•• shall be punished-••••••• cii) in any other case with imprisonment for a term which may extendtoone year and with fine which may extend to two thou- sand rupees, but in the absence of special and adequate reasons to the contrary tobe mentioned in the judgment of the Court, such imprisonment shall notbeless than three months and suchfineshall notbeless thanfivehundred rupees, in the caseef the offence of import, export or transport of liquor or any intoxicating drug falling under clause(a): •..• • • •	B D
(2)Itshallt>e presumed until the contraryis shown-
_(_a)that a person accused of any offence under clauses(a)to(j)of sub-section(I)has com- mitted such offence in respect of any liquoror any intoxicating drugorany still, utensil, im- plementorapparatus whatsoever for the tapping of toddyorthe manufacture of liquor or any intoxicating drugorany such materials as are ordinarily usedinthe tapping of toddy or the manufacture of liquororany intoxicating drug orany materials which have undergone any process towards the manufacture of liquoror any intoxicating drugorfrom which any liquor orintoxicating drug has been manufactured. for the possession of which heis unable to account satisfactorily. and•••••••	F G
Itcannotbedisputed in thepresen~case that there has been a violation by the Magistrate of the requirements ofs.243 of the Criminal Procedure Code which states : "243. If the accused admits that he has committed the offenco of which heisaccused,hisadmission shall	II	'·~

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KAUSHALYA DAS v. STATE (Ramaswami, J.)

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233

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A be recorded as nearly as possible in the words used by

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j him; and, if he shows no sufficient cause whfhe should not be convicted, the Magistrate may convict him accordingly."

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It is stated by the Magistrate in his report that the particulars

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B of the offence were explained to the appellant by the Bench Clerk Sri M. Sukumara Rao and that the plea of guilty by tihe appellant was interpreted to the Court by the _sa~e Bench Clerk. It is manifest from the record that the admiss10n of the appellant has not been recorded "as nearly as possible in the words used by him", as required by s. 243 of the Criminal

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c Procedure Code. It is true that in the judgment dated March 22, 1963 the Magistrate has said that the appellant "pleads guilty", but the record contains no indication whatsoever as to what exactly the appellant admitted before the Magistrate. In our opinion, the requirements of s. 243 of the Criminal Proce-

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D dure Code are mandatory in character and a violation of these prov1S1ons vitiates the trial and renders the conviction legally invalid. The requirement of the section is not a mere empty formality but is a matter of substance intended to secure proper

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"' administration of justice. It is important that the terms of the section are strictly complied with because the right of appeal of

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E the accused depends upon the circumstance whether he pleaded guilty or not and it is for this reason that the legislature requires that the exact words used by the accused in his plea of guilty should, as nearly as possible, be recorded in his own language in order to prevent any mistake or misapprehension. It has been held by the Madras High Court in Queen-Empress v. Erugadu (1) that the violation of the procedure in s. 243 of the Criminal Procedure Code was sufficiently serious to invalidate the conviction of the accused. The same view has been taken by the Calcutta High Court in Shailabala Dasee v. Emperor(') and by the Allahabad High Court in Mukandi Lal v. State('). In our opinion, these cases correctly lay down the law on the point.

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G

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It is submitted on behalf of the respondent that under s. 362(2)(A). Criminal Procedure Code it was sufficient if the Magistrate made a memorandum of the substance of the examination of the accused and that it was not necessary to record the 4 actual words used by the accused. In our opinion, s. 362(2) (A) H of the Criminal Procedure Code has no application in a case (1) I.L.R. 15 Mad. 83. (2) l.L.R. 62 Cal. 1127. (3) A.LR. 1952 Allahabad 212

I I I.

[1966) I S.C.R.

234

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SUPIUUO! COUIT REPORTS

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where the accused pleads guilty and the special provision of s. 243 of the Criminal Procedure Code would be attracted in such a case. Section 243 of the Criminal Procedure Code is a provision of a special character and according to well-established rule of interpretation that special provision will take precedence and override the general provision of s. 362 (2)(A) of the Criminal Procedure Code. We, therefore, reject the argument of Couse! for the respondent on this point.

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A

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ii

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For these reasons we allow this appeal, set aside the conviction and sentence imposed upon the appellant and order that the case should go back to the VIII Presidency Magistrate, Madra~ for being retried and brought to a conclusion in accordance with C law.

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Appeal a/lowed.

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,

Mahant Kaushalya Das v. State of Madras

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Mahant Kaushalya Das v. State of Madras

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