Mahant Kaushalya Das vs State Of Madras on 7 May, 1965

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Supreme Court of India
Mahant Kaushalya Das vs State Of Madras on 7 May, 1965
Equivalent citations: 1966 AIR 22, 1966 SCR (1) 229
Author: V Ramaswami
Bench: Ramaswami, V.
           PETITIONER:
MAHANT KAUSHALYA DAS

	Vs.

RESPONDENT:
STATE OF MADRAS

DATE OF JUDGMENT:
07/05/1965

BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SARKAR, A.K.
HIDAYATULLAH, M.

CITATION:
 1966 AIR   22		  1966 SCR  (1) 229


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



HEADNOTE:
The  appellant	was arrested by the police  and	 immediately
produced  before  the  Presidency Magistrate,  Madras  on  a
charge	under s. 4(1) (A) of the Madras Prohibition  Act  on
the allegation that he was in possession of a certain amount
of  Ganja concealed in a wooden box in his premises  without
any  permit.   The appellant pleaded guilty  and  upon	that
plea,  he  was convicted by the Magistrate.   The  appellant
preferred an appeal to the High Court alleging, inter  alia,
that  he  was  an illiterate  person,  not  acquainted	with
English or Tamil or with any other South Indian language and
he  only knew Hindi as it was spoken in 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	understood  the	 implications  of  the	offence	  or
proceedings  before the Magistrate.  The High  Court  called
for  a report from the Presidency Magistrate  who  submitted
that  the particulars of the offence and the plea of  guilty
by  the	 appellant  were explained to the  appellant  by  an
interpreter-the	 Bench Clerk who had passed examinations  in
Hindi,	 and   the  appellant's	 allegations   were   false.
Thereafter  the High Court dismissed the appeal.  In  appeal
by certificate, the appelant, inter alia, contended that the
Magistrate  did not comply with the mandatory provisions  of
s. 243 of the Code of Criminal Procedure, that the appellant
had been deprived of the substance of a fair trial, that the
conviction of the appellant was legally invalid.
HELD : The requirements of s. 243 of the Criminal  Procedure
Code  are  mandatory in character and a violation  of  these
provisions  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 administration of justice.  It is important
that  the  terms of the section are strictly  complied	with
because the right of appeal of 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. [233 D-F]
Section	 243  of  the  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-B]
The  violation	of the procedure in s. 243 of the  Code	 was
sufficiently  serious to invalid the the conviction  of	 the
accused. it was 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]
230
Queen-Empress  v.  Erugadu, I.L.R. 15  Mad.  85,  Shailabata
Dasee  V.  Emperor, I.L.R. 62 Cal. 1127 and Mukandi  Lal  v.
State, A.I.R. 1952 All. 212, approved.



JUDGMENT:

CIVIL APPELLATE JUIUSDICTION : Civil Appeal No. 131 of 1963.
Appeal from the judgment and order dated April 29, 1963 -of
the Madras High Court in Criminal Appeal No. 251 of 1963.
E. C. Agarwala and P. C. Agarwala, for the appellant.
A. Ranganadham Chetty and A. V. Rangam, for the respon-
dent.

The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought by certificate granted
under Art. 134(1)(c) of the Constitution from a judgment of
the Madras High Court dated April 29, 1963 in Criminal
Appeal No. 251 of 1963 affirming the conviction of the
appellant-Sri Mahant Kaushalya Das under s. 4 (1) (a) of the
Madras Prohibition Act and the sentence of one year Rigorous
Imprisonment and a fine of Rs. 50 or in default rigorous im-
prisonment for one month.

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 Gate, Madras which is a public place of
worship. On March 22, 1963 at about 10 a.m. the appellant
was arrested by the police and immediately produced before
the VIII 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 grams 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 Magistrate 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 disciples, that the proceedings were rushed through
with undue haste, that he did not really plead guilty to the
charge and
231
that he never understood the implications of the offence or
the proceedings before the Magistrate. The appellant filed
an affidavit in support of the appeal before the High Court
in regard to these allegations. Kailasam, J. called for a
report from the VIII Presidency Magistrate with regard to
the allegations made in the affidavit of the appellant. On
April 23, 1963 the Magistrate submitted a report as follows:

“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 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.”

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

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 submitted 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.

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

“On 22nd March 1963 at about 8 a.m. at No. 1

General Muthiah Mudali street in C-2 limits,
the accused was found in possession of 3,960
grams of Ganja concealed in wooden box in his
Matam premises without any permit. Hence the
charge.”

The judgment by the Magistrate reads as follows:

“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
3 2
to rigorous imprisonment for one month. Confiscate
property.”

Section 4 of the Madras Prohibition Act, 1937 (Madras Act IO
of 1937) as amended by Madras Act 8 of 1958 states
“4. ( 1 ) Whoever-

(a) imports, exports, transports or
possesses liquor be or any intoxicating
drug;********* shall be punished –**

(ii) in any other case with imprisonment for
a term which may extend to one year and with
fine which may extend to two thousand rupees,
but in the absence of special and adequate
reasons to the contrary to be mentioned in the
judgment of the Court, such imprisonment shall
not be less than three months and such fine
shall not be less than five hundred rupees, in
the case of the offence of import, export or
transport of liquor or any intoxicating drug
falling under clause (a) :*******
(2) It shall be presumed until the contrary
is shown-

(a) that a person accused of any offence
under clauses (a) to (j) of sub-section (1)
has committed such offence in respect of any
liquor or any intoxicating drug or any still,
utensil, implement or apparatus whatsoever for
the tapping of toddy or the manufacture of.
liquor or any intoxicating drug or any such
materials is are ordinarily used in the
tapping of toddy or the manufacture of liquor
or any intoxicating drug or any materials
which have undergone any process towards the
manufacture of liquor or any intoxicating drug
or from which any liquor or intoxicating drug
has been manufactured, for the possession of
which he is unable to account satisfactorily,
and *******
It cannot be disputed in the present case that there has
been a violation by the Magistrate of the requirements of s.
243 of the Criminal Procedure Code which states :

“243. If the accused admits that he has
committed the offence of which he is accused,
his admission shall
233
be recorded as nearly as possible in the words
used by him; and, if he shows no sufficient
cause why he should not be convicted, the
Magistrate may convict him accordingly. ”

It is stated by the Magistrate in his report that the
particulars of the offence were explained to the :appellant
by the Bench Clerk Sri M. Sukumara Rao and that the plea of
guilty by the appellant was interpreted to the Court by
the same Bench Clerk. It is manifest from the record that
theadmission 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 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 Procedure Code are
mandatory in character and a violation of these provisions
vitiates the trial and renders the conviction legally
invalid. The requirement of the section is not a mere empty
formalitybut is a matter of substance intended to secure
proper administration of justice. It is important that the
terms of the section are strictly complied with because the
right of appeal of the accused depends upon the circumstance
whether lie 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 his 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(2)
and by the Allahabad High Court in Mukandi Lai v. Stale(3).
In our opinion, these cases correctly lay down the law on
the point.

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

62 Cal. 1127.

(3) A.I.R. 1952 Allahabad 212
234
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 Cousel for the respondent
on this point.

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, Madras for being retried and brought to a
conclusion in accordance with law.

Appeal allowed.

235

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