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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

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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

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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

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             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

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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