1. The revision application u/s 435 of the Code of Criminal Procedure of 1898, being Rev. No. 803/67, is at the instance of the accused Petitioner
Sheo Sankar Singh. The opposite parties are the State, Sm. Latika Banerjee and Shri Shanti Banerjee, P. Ws. 1 and 2 respectively in the case.
The Petitioner was convicted u/s 7, Clause (ii) of the Essential Commodities Act, 1955 by Shri M. Rahaman, Magistrate, 1st Class, Howrah and
was sentenced to T.R.C. (Till rising of the Court) and to pay a fine of Rs. 2,000/- in default, to Rigorous Imprisonment for two months. The
Learned Magistrate further directed by his order that out of the fine, if realized, a sum of Rs. 500/- was to be paid to P.W. 1 or to her husband
P.W. 2 as compensation. He also ordered to destroy alamat seized.
2. The other revision case, being No. 804 of 1967, arises our of a rule issued suo motu by this Court upon the District Magistrate of Howrah and
the accused Agya Ram Gargi, alias Garg to show cause why the order dated 23rd March, 1966 discharging the said Agya Ram Gargi alias Garg
passed by the learned Magistrate, Sri M. Rahaman, 1st Class, Howrah in the C.S. G.r. case No. 30/64, referred to in the petition, filed by the
convicted accused Petitioner Sheo Shankar Singh, out of which arose the Revision Case No. 803/67, should not be set aside or such other or
further order or orders made as to this Court might seem fit and proper.
3. The State appeared in both the Revision Cases through Mr. Prasun Kumar Ghose, learned Advocate representing the learned Deputy Legal
Remembrancer of the State of West Bengal.
In the Revision Case No. 803/67 the accused Petitioner was represented by Mr. Chintaharan Ray, a learned Advocate of this Court with another
learned Advocate, Mr. Arun Kishore Das Gupta. Agya Ram Gargi the opposite party in Revision Case No. 804/67 was represented by Mr. Nalin
Chandra Banerjee, a learned Advocate of this Court. We heard both the two Revision Cases which arose out of the same criminal proceeding
before the learned Magistrate, Shri M. Rahaman, and both the cases shall be governed by this judgment.
4. Latika Banerjee, who figured as P.W. 1 in the case addressed a petition of complaint to the Special Superintendent of Police, Enforcement
Branch, West Bengal on 31.1.64 wherein she stated that she took delivery of 40 (forty) bags of cement from Agya Ram Garg (Cement Stockist)
413, G.T. Road, North Howrah on 17.1.64 vide the cash memo No. 597 against the Permit No. CM 2563/2 dated 7.1.64, issued by the office of
the S.D.C., Supplies, Howrah. The License No. of the aforesaid stockist is 1899/40. After having tested by the qualified Mistry (Mason) engaged
by the Petitioner for repairing her house and additions it was found that the cement was not genuine one and that it was not being concretized
without which the cement work could not be done. The consignment involved Rs. 315/46 Np. which was fully paid. She complained further that
she was deceived by the cement dealer against whom she could not take any action without bringing the matter to the notice of the addressee of
the letter and his help. Accordingly, she prayed before the Special Superintendent of Police, Enforcement Branch to take up the matter. She had
also dispatched sample of the said cement and a copy of the cash memo to the Special Superintendent of Police, Enforcement Branch along with
the letter of complaint.
5. The petition of complaint, dated 31.1.64 addressed by Sm. Latika Banerjee to the Special Superintendent of Police, Enforcement Branch, West
Bengal was forwarded with an endorsement dated 3.1.64 by the said Superintendent to Inspector, S. P. Ray Choudhury with a request to enquire
and report. The Inspector, S. P. Ray Choudhury endorsed on the said application ""forwarded to O/C, Golabari P.S. for starting an F.I.R. u/s 7(1)
of Essential Commodities Act, 1955 for contravention of s.7(1) of Essential Commodities Act, 1955, for contravention of para 3 of Cement
(Quality and Control) Order, 1962 read with Section 420 I.P.C."" On the basis of the written complaint as aforesaid, A.S.I. Swadesh Mukherjee
filled up the prescribed First Information Report form of the said P.S. on 1.2.64 and started a case against Agya Ram Gargi u/s 7(1) of the
Essential Commodities Act, 1955 for contravention of para 3 of Cement (Quality and Control) Order, 1962 read with Section 420 I.P.C. in the
First Information Report form, the A.S.I., Swadesh Mukherjee recorded ""on receipt of the written complaint I started this case. S.I. A. C. Das of
Howrah DEB has take up the investigation of the case."" The place of occurrence as recorded in the F.I.R. form - In the Cement Shop of Agya
Ram Garg at 413, G. T. Road (North) The Charge-sheet No. 25 dated 10.5.65 on the basis of the F.I.r. No. 1 dated 1.2.64 referred to above
was submitted by S.I. A. C. Das on 10.5.65. In the column of accused person in the Charge Sheet, Agya Ram Garg was shown absconding and
Sheo Sankar Singh, Manager of Agya Ram Garg, was shown as released on bail. The relevant facts in the column of the Charge Sheet reading as
charge or information as set forth therein are as follows:
6. On 1.2.64 on the complaint Sm. Latika Banerjee, Golabari P.S. case No. 1 dated 1.2.64 u/s 7(1) of Act X of 1955 and 420 I.P.C. was
started by A.S.I. Swadesh Ranjan Mukherjee. The fact of the case was that the complaint took 40 bags of cement from the cement dealer Agya
Ram Gargi on 16.1.64 with proper permit. After taking the cement bags to her house she found that the cement bags were not genuine cement and
the cement dealer cheated her. During investigation the cement was found adulterated by the Chemical Examiner. The case was well proved
against both the proprietor, Agya Ram Garg and Sri Sheo Sankar Singh, Manager of the firm as per Cols. 2 and 4 of the C.S. So I submitted C.S.
No. 25 dated 10.5.65 u/s 7(1) of Act X of 1955 for violation of para 3 of Cement (Quality and Control) Order, 1962 and u/s 420 I.P.C. to stand
the trial in Court.
7. On 3.6.65, when the learned Subdivisional Magistrate, Howrah received the Charge Sheet, the Petitioner, Sheo Sankar Singh was on police
bail while Agya Ram was reported to be absconding. On 11.6.65 Sheo Sankar Singh appeared by a petition and was bailed out. On 13.7.65 both
Sheo Sankar Singh and Agya Ram Garg appeared and Agya Ram was allowed bail and Sheo Sankar Singh was allowed to continu8e on his
previous bail. The case was transferred by the Sub-Divisional Magistrate on that very date to Mr. M. Rahaman, Magistrate, 1st Class, Howrah.
After the copies of the relevant documents were furnished to both the accused upon which the prosecution wanted to rely at the trial, several dates
were fixed for framing charge against both the accused persons. On 23.3.66 Sheo sankar Singh, the present Petitioner in Criminal Revision Case
No. 803/67 and Agya Ram Gargi, the opposite party in the Criminal Revision Case No. 804/67 were present when the Magistrate framed a
charge u/s 7, Clause (ii) of Act X/55 and explained the same to the accused in a summary procedure. The accused person pleaded not guilty to the
charge and claimed to be tried. The Magistrate recorded the following order on 23.3.66.
Accused present, Charge u/s 7(ii) Act X/55 explained to the accused in a summary procedure. Accused pleaded not guilty and claims to be tried.
There is no element to consider any charge u/s 420 I.P.C. against the accused which has also been admitted by the C.S.I. Elements against
accused Agya Ram is also wanting and he is discharged u/s 251 A(2) Code of Criminal Procedure To 26.5.66 for p.ws. Issue summons
accordingly.
8. This order dated 23.3.66 discharging Agya Ram Gargi u/s 251 A(2) of the Code is the subject-matter of the revision Case No. 804/67 rising
out of the rule issued by this Court suo-motu. Now, before proceeding to consider the revision application No. 803/67 we will deal with the
legality of the order dated 23.3.66 passed by the learned Magistrate discharging the opposite party Agya Ram Gargi in the Criminal Revision Case
No. 804/67 and his jurisdiction to pass such order against which the Rule was issued by this Court suo-motu. Section 262 of the Code says
amongst other things, that the procedures prescribed for warrant cases shall be followed in warrant cases subject to certain exceptions mentioned
in the Section. The case started on an information to the police and the charge sheet was submitted after completion of the investigation before the
learned Sub-divisional Magistrate by the Investigating Officer. So, the case is one instituted on ""police report."" Accordingly, the procedure at the
summary trial should have been u/s 251 A of the Code read with Section 262 and 263 of the Code. It is a warrant case, trial summarily for the
purpose of procedure, instituted on a police report. Therefore, at the commencement of the trial the learned Magistrate was to have followed the
procedure laid down in Sub-sections (4) and (5) onwards right up to Sub-section (13) of the Section 251 A of the Code. Upon consideration of
all the documents referred to in Section 173 of the Code and upon the making of such examination, if any, of the accused as the Magistrate thinks
necessary and after giving the prosecution and the accused an opportunity of being heard, the learned Magistrate considers the charge against the
accused to be groundless, he shall discharge him as Sub-section (2) of Section 251 A of the Code provides. If, upon such documents being
considered and such examination if any, being made and the prosecution and the accused being given an opportunity of being heard the Magistrate
is of opinion that there is ground for presuming that the accused has committed an offence triable under chapter XXI of the Code which such
Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused,
as Sub-section (3) of Section 251A of the Code enjoins. In a summary trial of an accused under warrant procedure laid down in Section 251 A of
the Code, instituted on police report, the Magistrate has to commence trial from the stage as provided for by Sub-section (4) of Section 251 A of
the Code. The provisions in the stages at the trial, as provided for by Sub-Sections 2 and 3 of Section 251 A of the Code to which we have
already made a reference need not be followed at the trial of a warrant case instituted on a police report in a summary procedure. Sub-Section 4
of Section 251 A of the Code reads as follows: The charge shall then be read and explained to the accused and he shall be asked whether he is
guilty or claims to be tried. The Section 263 of the Code amongst other things states that in cases where no appeal lies, the Magistrate or Bench of
Magistrates need not record the evidence of the witnesses or frame a formal charge; he shall enter in the columns of the form the particulars as in
Clauses (a) to (j) of Section 263 of the Code. Clause (f) of Section 263 of the Code reads as follows: The offence complained of and the offence
(if any) proved, and in cases coming under Clause (d) Clause (f) or Clause (g) of Sub-section (1) of Section 260 the value of the property in
respect of which the offence has been committed. Clause (g) of the said Section reads ''the plea of the accused and his examination (if any)'', ""The
offence complained of"" as Clause (f) of Section 263 of the Code enjoins, is a charge within the meaning of ""the charge"" in Sub-Section 4 of
Section 251 A of the Code which read as follows:
The charge shall then be read and explained to the accused and he shall be asked whether he is guilty or claims to be tried.
Sub-Section 6 of Section 251 A of the said Code reads as follows:
If the accused refuses to plead, or does not plead, or claims to be tried, the Magistrate shall fix a date for the examination of witnesses.
9. As those are the provisions of Section 251 A, Sub-Sections 4 and 6 which are relevant for our purpose in considering the legality and propriety
of the order passed by the learned Magistrate on 23.3.66, discharging Agya Ram, we are to examine whether the learned Magistrate''s order
discharging Agya ram after the framing of the charge could be supported in law and intra vires his jurisdiction. We have quoted the order of the
learned Magistrate in extensor. Though no formal charge against Agya Ram Garge and Sheo Sankar Singh was required to be framed u/s 263 of
the Code at the summary trial, the offence complained of and leveled against them and explained to them by the Magistrate by using the form
prescribed u/s 263 of the Code to which they pleaded not guilty amounted to the framing of charge within the meaning of Section 251A, Sub-
Sections 8 and 4 of the Code followed by taking of the plea of the accused to the charge when the case was instituted on a police report, and trial
had commenced as a warrant case instituted on police report under the summary procedure. After the offence u/s 7, Clause (ii) of the Act X/55
had been explained by the learned Magistrate to both the accused Sheo Sankar Singh and Agya Ram Garge and when both of them pleaded not-
guilty of the offence charged and claimed to be tried, it must be held that the Magistrate at that stage came down to the stage as laid down in Sub-
Section 4 of Section 251A of the Code. So, the learned Magistrate had no other alternative after that stage than to fix a date for examination of the
witnesses for trial of both the accused for the offence charged, under the summary procedure punishable u/s 7(i) (a) (ii), but not u/s 7 (ii) of the Act
X/55, following the procedure laid down in Sub-Section 6 of Section 251A of the Code onwards which we have already referred to earlier. Sub-
Section 7, following Sub-Section 6 of Section 251A of the Code provides that on the date so fixed with reference to Sub-Section 6 of Section
251A of the Code, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. But what the learned
Magistrate did after framing of the charge against Agya Ram and Sheo Sankar Singh u/s 7, Clause (ii) of Act X of 1955, which he had explained
to both of them and to which both of them pleaded not guilty and claimed to be tried, was that the learned Magistrate recorded in the order dated
23.3.66 which we have quoted earlier in this judgment reading as ""elements against accused Agya Ram is also wanting and he is discharged u/s
251A(2) of Code of Criminal Procedure This order discharging Agya Ram u/s 251 A Sub-Section 2 of the Code of Criminal Procedure was in
clear violation of Sub-Sections 6 and 7 of Section 251A of the Code not to speak of the other Sub-sections right upto Sub-Section 13 of Section
251 A of the Code. In compliance with Sub-Section 4 of Section 251 A of the Code the formal accusation i.e. the substance of the complaint, as
required by Clause (f) of the form, prescribed u/s 263 of the Code had been explained to both the accused and both the accused had pleaded not
guilty to the formal accusation i.e. the charge, the Magistrate had no other alterantive but to fix a date for trial of both the accused on the charge u/s
7(ii) of Act X/55 following the procedure of summary trial u/s 263 read with Section 251A, Sub-Section 4 and other relevant Sub-sections of the
Code. He had no jurisdiction to discharge Agya Ram at that stage u/s 251 A, Sub-Section 2 of the Code. If the materials placed before the
learned Magistrate and considered by him did not satisfy him as sufficient in law, to lay an accusation for an offence, punishable u/s 7(ii) of Act
X/55 against Agya Ram but sufficient against Sheo Sankar Singh, he could have, before explaining the accusation and taking pleas of both the
accused, discharge Agya Ram and then could have explained the accusation only to Sheo Sankar, and framed a charge for an offence punishable
u/s 7(1) (a) (ii) of Act X/55 against Sheo Sankar Singh and tried him for such offence following the procedure beginning from Sub-Section 4
onwards of Section 251 A read with Section 263 of the Code. After the learned Magistrate had followed the procedure of framing charge and
explaining the same to both the accused who pleaded not guilty to the charge and claimed to be tried as provided for by Sub-Section 3 and Sub-
Section 4 of Section 251 A, read with Section 263, Clause (f), as in the form prescribed u/s 263 of the Code, he lost jurisdiction to fall back upon
Section 251 A. Sub-section (2) of the Code and to record an order of discharge only as against Agya Ram in respect of the offence punishable u/s
7 (1) (a) (ii) of Act X/55 in clear violation of the provisions of Sub-Section 6 and other Sub-section following Sub-Section 6 of Section 251 A of
the Code. From this aspect only, the order of discharge passed by the learned Magistrate on 23.3.66 in favour of Agya Ram has been thoroughly
illegal and without jurisdiction, and cannot sustain in law. The learned Magistrate considered the materials before him as against both the accused
relating to an offence alleged u/s 420 I.P.C. He did not find the materials sufficient in law to level an accusation for an offence punishable u/s 420
I.P.C. as against both the accused, though both the accused were chargesheeted for an offence, punishable u/s 7, Clause (ii) of Act X/55 as well
as for an offence punishable u/s 420 I.P.C.
10. It would be very intriguing to note that the charge sheet did not state that the chemical examiner found the cement in question as being not of
the ''prescribed standard''. In para 2, Clause (b) (i) of the Cement (Quality and Control) Order, 1962 it is stated: ""prescribed standard"" means the
Indian Standard - (i) No. IS: 260-1958 relating to Portland cement, rapid hardening cement and low heat cement, and . . . Explanation - Cement
shall not be deemed to be prescribed standard if it is not of the nature, substance or quality which it purports or it represents to be.
11. In the charge sheet, as we have already mentioned, the Sub-Inspector used the following words ""during investigation the cement was found
adulterated by the Chemical Examiner. There is no such expression as ''adulterated'' in the Cement (Quality and Control) Order, 1962. We have in
it the expression ""prescribed standard"" statutorily defined and explained which we have already quoted. It is surprising to note that the Chemical
Examiner in his report observed ""samples marked (A) and (C) are genuine Portland cement while sample marked (B) is adulterated Portland
cement."" The Cement (Quality and Control) Order, 1962 does not define ""adulterated cement."" It speaks of ""prescribed standard"" and it lays
down and explains such ""prescribed standard"". So, the Chemical Examiner''s report does not and cannot be considered as one which found the
alleged offending cement to be not of ""prescribed standard"" within the meaning of para 2(b)(i) and the explanation thereto as appearing in the
Cement (Quality and Control) Order, 1962. So, the question will not arise as to which is the most important element besides other elements that
constitutes the offence charged against both Agya Ram and Sheo Sankar, punishable u/s 7(ii) of Act X/55 read with paragraph 3 of the Cement
(Quality and Control) Order, 1962. The Chemical Examiner''s report is certainly one of the documents it would go to show if the offending cement
was or was not of the ""prescribed standard"" which is one of the most important elements in the offence charged. If the Chemical Examiner''s report
reveals that the offending cement was not of the ''prescribed standard'' within the meaning of Cement (Quality and Control) Order, 1962 then and
then only, provided the other elements in the offence were present, the learned Magistrate could have leveled accusation against both the accused
for having had contravened paragraph 3 of Cement (Quality and Control) Order, 1962 punishable u/s 7(1)(a)(ii) of Act X/55. But the learned
Magistrate did not, as we find, look into the provisions of the Cement (Quality and Control) Order, 1962, nor did he examine the Chemical
Examiner''s report keeping in view the definition ''prescribed standard'' as in paragraph 2 Clause (b) (i) and explanation thereto appearing in
Cement (Quality and Control) Order, 1962. So, while framing the charge, or in other words, laying the accusation against both the accused for
contravention of paragraph 3 of the Cement (Quality and Control) Order, 1962, punishable u/s 7 (1) (a) Clause (ii) of Act X/55, the learned
Magistrate did not apply his mind to the materials gathered during investigation and placed before him to ascertain whether the offending cement
did or did not conform to the ""prescribed standard"" according to the report of the Chemical Examiner. The Chemical Examiner''s report, as we
have seen, used the expression ""adulterated ''but did not use the expression'' below the prescribed standard"", if so found on analysis in regard to
the alleged offending cement. The whole prosecution case appears to have rested mainly on the Chemical Examiner''s report. As the Chemical
Examiner''s report does not show that the alleged offending cement did not conform to the ''prescribed standard'' as defined in paragraph 2, Clause
(b) (i) and in explanation thereto of the Cement (Quality and Control) Order, 1962 there could be no framing of the charge within the meaning of
Sub-Section 4 of Section 251 A read with Section 263 Clause (f) of the Code, as against both the accused Agya Ram and Sheo Sankar Singh by
the learned Magistrate. It is not known, as the Chemical Examiner was not examined as a witness for the prosecution by the learned Magistrate,
while trying Sheo Sankar Singh and convicting and sentencing him u/s 7(ii) of Act X/55 read with paragraph 3 of the Cement (Quality and Control)
Order, 1962 as to whether by the expression ""adulterated"" used in his report, the Chemical Examiner had materials in his possession in his
laboratory sheets, containing data found on examination of the alleged offending cement, available for the Court''s scrutiny indicating that the
offending cement did not conform to the ''prescribed standard'' within the paragraph 2 Clause (b) (i) and explanation thereto of the Cement
(Quality and Control) Order, 1962. If the Chemical Examiner''s laboratory sheets containing data establishing that the offending cement did not
conform to the ''prescribed standard'' then and then only there could possibly be a charge against both the accused persons for having had violated
paragraph 3 of the Cement (Quality and Control) Order, 1962, making themselves liable to be punished u/s 7 (1) (a), Clause (ii) of Act X/55
(Essential Commodities Act) provided of course, that the other elements constituting such offence alleged were also there in the materials placed
before the Magistrate for consideration.
12. Now we come to the consideration of the revision application in Criminal Revision Case No. 803 of 1967, filed by Sheo Sankar Singh. In
view of what we have just observed, the order date 23.3.66 discharging Agya Ram passed by the learned Magistrate cannot sustain in law and is
without jurisdiction and must be set aside with such directions as we would hereafter record in the concluding portion of this judgment.
13. The trial, however, related only to Sheo Sankar Singh for an offence, punishable u/s 7, Clause (ii) of Act X/55 for his alleged contravention of
paragraph 3 of the Cement (Quality and Control) Order, 1962 in regard to some quantity of Portland cement. Sheo Sankar Singh was found guilty
of the offence so charged and was convicted by the learned Magistrate and sentenced in the following terms:
Accused Sheo Sankar Singh is convicted u/s 7 (ii) of Act X/55 and considering the serious nature of the offence committed by him, he is sentenced
to T.R.C. and also to pay a fine of Rs. 2,000/- (Two thousand) i.d. to R.I. for two months u/s 251 A (12) Code of Criminal Procedure Fine if
realized, Rs. 500/- (Five hundred) should be paid to p.w. 1 or to her husband p.w. 2 as compensation.
14. We cannot help observing that the learned Magistrate while framing the charge did not even correctly specify the Section of law under which
Sheo Sankar Singh was to be charged, punished and sentenced. The learned Magistrate framed the charge for the offence punishable u/s 7, Clause
(ii) of Act X/55. The alleged offence should have been charged as punishable u/s 7 (1) (a) (ii) of the Essential Commodities Act read with
paragraph 3 of the Cement (Quality and Control) Order, 1962 but the learned Magistrate recorded the order dated 23.3.66 wherein he had set
forth ""charge u/s 7(ii) of Act X/55 explained to the accused in a summary procedure . . . ""In the form used by the learned Magistrate u/s 263 of the
Code of Criminal Procedure in the column ''offence complained of and the date of its alleged commission'', the learned Magistrate recorded as
follows:
On 17.1.64 you sold ten bags of Portland Cement to one Srimati Lalita Banerjee which was adulterated Portland cement. You violated Clause (3)
of Cement (Quality and Control) Order and thereby committed an offence u/s 7(ii) of Act X/55.
15. Here, also, the learned Magistrate did not record, as he was to have recorded, the Section 7(1) Clause (a) (ii) of Act X/55. The importance of
stating the precise Section, Sub-section, clause and the number of clause of the law for violation of which any offender is charged, tried and
convicted, must appear in the charge-framed, as also in the judgment convicting and sentencing the offender to punishment prescribed by law. We
have noticed sitting in this Bench in a number of cases such violations of law by a number of Magistrates dealing with cases under Essential
Commodities Act (Act X/1955). We wish that the learned Magistrates would do well if they look into the precise provisions of law for violation of
which an offender is to be charged, tried and either sentenced to punishment or acquitted.
16. Mr. Chinatharan Ray, the learned Advocate for the Petitioner, Sheo Sankar Singh in Revision Case No. 803/67 submitted that the elements
constituting the offence charged were wanting and could not be established by the prosecution. The Chemical Examiner''s report was the sheet-
anchor of the prosecution case for substantiating the offence charged against Sheo Sankar Singh. We have already dealt with the nature of the
Chemical Examiner''s report and its inherent statutory insufficiency. The evidence as adduced before the learned Magistrate, did not establish that
the alleged offending cement failed to conform to the ''prescribed standard'' as law enjoins and already explained by us. It may be that the
Chemical Examiner may have in his possession data in his examination sheets which may prove or may not, if the alleged offending cement was or
was not of the ''prescribed standard'', as defined by paragraph 2, Clause (b) (i) and the explanation thereto, of the Cement (Quality and Control)
Order, 1962. In order to establish that the alleged offending cement was below the ''prescribed standard'' the prosecution was required to examine
Chemical Examiner who could have placed before the learned Magistrate the data of his analysis of the alleged offending cement if he maintained
those in his examination sheets so that the Court could have decided whether the alleged offending cement fell below the ''prescribed standard'' as
Law enjoins. Without the evidence of the Chemical Examiner, as we have already indicated, charge against either of the accused, as framed u/s
7(ii) of Act X/55 read with paragraph 3 of the Cement (Quality and Control) Order, 1962 could hardly sustain in law on the evidence of the
Chemical Examiner''s worthless report only. The prosecution evidence based on Chemical Examiner''s report failed to establish whether the alleged
offending cement fell below the ''prescribed standard'' as defined in paragraph 2, Clause (b) (i) and explanation thereto, of the Cement (Quality
and Control) Order, 1962. Therefore, the learned Magistrate was not justified in law in framing a charge against Sheo Sankar Singh, the Petitioner
in the Revision Case No. 803/67 for violation of paragraph 3 of the Cement (Quality and Control) Order, 1962 punishable, as the learned
Magistrate recorded u/s 7(ii) of Act X/55 and trying, convicting and sentencing the said Petitioner on such a charge u/s 7(ii) of Act X/55.
17. The learned Magistrate in exercise of his powers u/s 545 of the Code passed the following order:
Fine if realized Rs. 500/- should be paid to p.w. 1 or to her husband p.w. 2 as compensation.
18. Mr. Ray submitted that the order being contrary to law could not sustain. The relevant portions of Section 545, Sub-section (1) of the Code
reads as follows:
Whenever under any law in force for the time being a Criminal Court imposes a fine . . . . . or a sentence . . . .. of which fine forms a part, the
Court may, when passing judgment, order the whole or any part of the fine recovered to be applied -
(b) In the payment to any person of compensation for any loss or injury caused by the offence, when the substantial compensation is, in the opinion
of the Court, recoverable by such person in a Civil Court.
19. The learned Magistrate erred in law while awarding compensation to p.w. 1 or to her husband p.w. 2 since compensation is payable to any
person, who is in the opinion of the Court, can recover compensation in a Civil Court. The learned Magistrate should have awarded compensation
to one person, but not alternatively as he did. Such order is clearly against law. In a Civil Court, the person entitled to compensation may be one
person, or more than one person jointly, but not alternatively, suing as a Plaintiff or Plaintiffs in a suit for compensation. The person who is entitled
before the Civil Court to compensation must, therefore, be a definite and ascertained individual. So, the learned Magistrate was to have awarded
compensation to that person who only suffered the injury by the offence. It would have been a valid order had he had awarded compensation only
to p.w. 1 or only to p.w. 2 consistent with his definite finding as to who actually had suffered the injury by the alleged offence. The learned
Magistrate did not find who actually had sustained injury by reason of the alleged offence. There could be no suit for a claim for compensation by
two persons claiming alternatively as Plaintiff, for the same amount before a Civil Court, according to law. The learned Magistrate was to have
found, which he did not, as to who was the individual who had suffered injury by the alleged offence and then he was to have awarded
compensation to such definite individual entitled to it, according to the finding of the Magistrate, keeping in view that such person was also under
the law, entitled as a Plaintiff, to sue and to get a decree for compensation, which the learned Magistrate awarded him, before a Civil Court, suing
as the Plaintiff in a properly constituted suit. Therefore, the order of the learned Magistrate as quoted above has been thoroughly illegal and without
jurisdiction and cannot sustain in law.
20. Mr. Ray, the learned Advocate for Sheo Sankar Singh submitted that the order ""sentenced to T.R.C."" was not a sentence according to law
and that neither the conviction nor the sentence could be legally maintained. We have had occasions in several other revision cases to note where
the Magistrates sentenced the accused persons on conviction for an offence to ""T.R.C."" or to ""detention till rising of the Court"" or to imprisonment
till rising of the Court"". In the present case, the learned Magistrate while sentencing the accused observed ""considering the serious nature of the
offence committed by him he is sentenced to ""T.R.C."" and also to pay a fine . . . ""Chapter III of the Indian Penal Code under the heading of
''punishment'' begins with Section 53, the relevant portion of which reads as follows:
53. The punishments to which offenders are liable under the provisions of this Code are -
First . . . . .
Secondly . . . . .
Thirdly . . . . .
Fourthly - Imprisonment, which is of two descriptions, namely:
(1) Rigorous, that is, with hard labour
(2) Simple.
* * *
Section 60 of the Indian Penal Code reads as follows:
In every case in which an offender is punishable with imprisonment which may be of either description it shall be competent to the Court which
sentences such offenders to direct in the sentence that such imprisonment shall be wholly rigorous, or that such imprisonment shall be wholly
simple, or that any part of such imprisonment shall be rigorous and the rest simple.
21. If the punishment is to be of imprisonment, it must be of either of the two descriptions either rigorous or simple, and Section 60 of the Code
directs the Court, while sentencing an offender to imprisonment to record in the sentencing order that such imprisonment shall be wholly rigorous or
wholly simple or that such imprisonment shall be partly rigorous, and the rest simple. So, any punishment of imprisonment must be either rigorous,
or simple, or either partly rigorous, or partly simple, and such character of punishment of imprisonment must appear in the criminal Court''s
judgment or order while sentencing an offender to imprisonment. We have got in all the punishing Sections of the Indian Penal Code and other
Penal Laws in force in India the maximum limit of punishment of imprisonment where imprisonment is a statutorily prescribed sentence, but not the
minimum of such sentence. Section 510 of the Indian Penal Code prescribes simple imprisonment for a term which may extend to 24 hours, or
with a fine which may extend to Rs. 10/- or with both. This Section limits the maximum sentence of simple imprisonment up to 24 hours which, as
we find, is the shortest maximum period of simple imprisonment prescribed by the Indian Penal Code. We could not find in the Indian Penal Code
nor in the Essential Commodities Act (Act X/55) any punishment reading as either ""detention till rising of the Court"" or ""sentenced to T.R.C."" (it
may be read as till rising of the Court) or sentenced to ""imprisonment till rising of the Court"". What we find is that if a Court awards a punishment
of imprisonment, awardable under the law to an offender, the imprisonment must be either simple or rigorous partly simple or partly rigorous if so
awardable for the offence, punishable under any particular law in force in India, and that the Court awarding the sentence of imprisonment must
specify in the order sentencing the offender to imprisonment whether the imprisonment shall be simple or rigorous or partly simple or partly
rigorous, having regard to the provisions of fourthly of Section 53 and of Section 60 of the Indian Penal Code and of the law under which a
particular offender is punishable for the offence with imprisonment which may be prescribed as either simple or rigorous. Section 32, Sub-section
(1) and (2) of the Code of Criminal Procedure authorize the courts of Magistrates to pass the following sentences:
The Courts of Magistrates may pass the following sentences, namely,
Imprisonment for a term not exceeding two years including such solitary confinement as is authorized by law;
Fine not exceeding two thousand rupees;
Imprisonment for a term not exceeding six months, including such solitary confinement as is authorized by law;
Fine not exceeding five hundred rupees; imprisonment for a term not exceeding one month;
Fine not exceeding one hundred rupee;
(2) The Court of any Magistrate may pass any lawful sentence, combining any of the sentences which it is authorized by law to pass.
We do not find either in Section 53 of the Indian Penal Code or in Section 32 of the Code of Criminal Procedure that a Magistrate may pass any
sentence other than the sentence of imprisonment of either of the two descriptions . . . . simple or rigorous of varying terms, as authorized by law.
We could not find either in Section 53 I.P.C. or in Section 32 of the Code of Criminal Procedure any authority for the Courts of Magistrates to
sentence to a punishment reading as ""detention till rising of the Court"" or as ""sentenced to T.R.C."" or as ""imprisonment till rising of the Court."" So,
as we will hereinafter discuss, the learned Judge in a case decided by the Andhra Pradesh High Court rightly observed ""the sentence of
imprisonment till rising of the Court is unknown to law."" In the case of (1) Boddepalli Lakshminarayana Vs. Suvvari Sanyasi Appa Rao and
Others, , High Court, at page the learned Judge sitting singly on the bench of Andhra Pradesh High Court at page 534 paragraph 17 of the report
observed: ""Apart from the fact that the sentence is unjustifiably lenient, the sentence of imprisonment till the rising of the Court is unknown to law,
for the sentence of imprisonment involves the suffering of it outside the custody of the Court."" The learned Judge, however, did not refer in his
judgment to the provisions of Section 53, fourthly and Section 60 of the Indian Penal Code, and Section 32 of the Code of Criminal Procedure.
Mr. Ghose, the learned Advocate for the State, however, brought to our notice a Division Bench decision of the Madras High Court in the case of
and in regarding (2) Nathu Nadar reported in AIR 1945 Mad 313. The two previous single Bench decisions of the Madras High Court on the
question of punishment sentencing an offender to imprisonment till rising of the Court had been over-ruled by the Division Bench decision of the
Madras High Court referred to above. At page 314 of the report (2) (A.I.R. 1945 Mad) the Division Bench while disagreeing with the two earlier
Single Bench decisions of the Court on the question of punishment sentencing an offender to imprisonment till rising of the Court observed - ""The
validity of a sentence of imprisonment till the rising of the Court is recognized in the Criminal Rules of Practice framed by this Court. Paragraph 1 of
R. 102 says:
The Government consider the awarding of short term of imprisonment as undesirable and Magistrates, before passing such sentences, should
consider whether imprisonments till the rising of the Court allowed by law could not appropriately be passed instead, or the provisions of Section
562, Criminal P.c. applied in favour of accused person.
Of course, if a sentence till the rising of the Court were not one allowed by law, we should not be bound to have regard to this rule, but it was
inserted after consideration and we do not doubt the wisdom which lies behind it. ""We have gone through this judgment of the Division Bench of
the Madras High Court. The provision of Sections 53 and 60 of the Indian Penal Code and Section 32 of the Code of Criminal Procedure, 1898
which we have considered and discussed earlier in this judgment and several other provisions of the Code of Criminal Procedure and the
provisions of the Prisons Act, 1894 which we would hereafter discuss and consider in this judgment had not been considered and discussed by the
Division Bench of the Madras High Court. The Criminal Rules and Orders, Vol. I (A.S.) framed by the Calcutta High Court, 1950 Education. do
not make any provision similar to paragraph 1 of R. 102 of the Criminal Rules and practices, framed by the Madras High Court. The Division
Bench of the Madras High Court observed that rule was inserted after due consideration and the Bench did not doubt the wisdom that law behind
the rule. We, therefore, do not feel persuaded to accept the views of the Division Bench of the Madras High Court on the question now before us
for consideration. We have already said that if any punishment is to be awarded being one of imprisonment as Section 53 fourthly of the Penal
Code enjoins it must be either simple or rigorous imprisonment and Section 60 of the said Code enjoins that the sentence is to be either of simple
imprisonment or of rigorous imprisonment or be partly of simple imprisonment, or partly of rigorous imprisonment, awardable under the law by the
Court punishing an offender and sentencing him to imprisonment, the Court shall record in the order sentencing to offender to imprisonment the
class on such imprisonment. The Division Bench of the Madras High Court as we noticed, did not consider whether the sentence of ""imprisonment
till the rising of the Court could be a punishment within the fourthly of Section of the Indian Penal Code, since words imprisonment as such is of a
sentence that cannot be read as to its class whether simple or rigorous. A sentence of ""imprisonment till the rising of the Court"" is, therefore, a
punishment unthinkable within the fourthly of Section 53 and Section 60 of the Indian Penal Code. That is why, we think, that the learned Judge of
the Andhra Pradesh High Court observed that ""an imprisonment till the rising of the Court"" was unknown in law (1) Boddepalli Lakshminarayana
Vs. Suvvari Sanyasi Appa Rao and Others, . We respectfully agree with this view.
22. So, we cannot consider the decision of the Division Bench of Madras High Court, reported in 1959 Madras 313 as an authority for the ***
position that a punishment, sentencing an offender to ""imprisonment till the rising of the Court"" or ''to detention till rising of the Court'' or ''sentenced
till rising of the Court'' as in the Revision Case No. 803/67 before us, is a punishment of imprisonment either simple or rigorous, within the fourthly
of Section 63, read with the provisions of Section 60 of the Indian Penal Code. By using the expression ''sentenced to imprisonment till rising of the
Court,'' or ''to detention till rising of the Court'' or ''sentenced till rising of the Court'' in the order or judgment convisting and sentencing an offender
for the offence committed, the criminal Court, not only awards a punishment unthinkable in law violating the mandatory provisions of Sections 53
and 60 of the I.P.C. and Section 32 of the Code of Criminal Procedure, but lays down how such punishment shall be executed and executes such
sentence itself in utter disregard of and in violation, of specific provisions of law relating to execution of lawful sentences. The Court thus usurps the
function of the legislature as it were, making a law both substantive and procedural. The expression sentenced till rising of the Court"" as used by the
learned Magistrate in the Revision Case No. 803 of 1967 cannot be read as a punishment of imprisonment, either simple or rigorous. The
expression ""imprisonment till the rising of the Court"" in the word ''imprisonment'' may have the favour of a punishment of imprisonment though
offender Section 53 fourthly and Section 60 of the Penal Code and Section 32 of the Code of Criminal Procedure but the expression ""sentenced
till the rising of the Court"" or the expression ""detained or detention till rising of the Court"" cannot even have the flavour of a punishment of
imprisonment since Section 53 fourthly and Section 60 of the Indian Penal Code enjoin that the punishment, if of imprisonment, shall be either
rigorous or simple and shall be so expressed by the Court in the sentencing order itself. A Magistrate cannot create a punishment not authorized by
law and cannot award such punishment or sentence violating Section 32 of the Code of Criminal Procedure. The Division Bench of the Madras
High Court in (2) AIR 1945 MAD 313, at page 314 observed ""the requirements of the Section (Section 383 of Code of Criminal Procedure .)
that the Court passing the sentence shall forthwith forward a warrant to the jail in which the accused person is to be confined merely contemplates
the case where the Court intends the sentence of imprisonment to be undergone in jail. It leaves entirely untouched the case where the Court
passing the sentence directs that the imprisonment shall take place within the precincts of the Court. ""So, the Division Bench of the Madras High
Court considers that the Criminal Court as a place of detention of an offender for undergoing a sentence of imprisonment who, after trial, was
convicted and sentenced with a punishment of imprisonment. We, however, cannot agree with such view. The Division Bench of the Madras High
Court while making the observations quoted above had not considered various other relevant provisions of law, which we have already and would
just now discuss in this judgment. Section 167, Sub-Section 2 and 3 of the Code of Criminal Procedure, read as follows:
167. Procedure when investigation cannot be completed in twenty four hours:
(2) The Magistrate to whom an accused person is forwarded under this Section may, whether has not jurisdiction to try the case, from time to time
authorize the detention, of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not
jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction.
Provided that no Magistrate of the third class, and no Magistrate of the second class not specify empowered in this behalf by the State
Government shall authorize detention in the custody of the police.
(3) a Magistrate authorizing under this Section detention in the custody of the police shall record his reasons for so doing.
23. Those two provisions of law contemplate police custody for a limited period of an accused during investigation stage. Now, if a criminal Court
thinks that the accused is to be detained in custody beyond the period, fixed, under Sub-Section 2 of Section 167 of the Code of Criminal
Procedure 1898, other than in police custody that custody must be the Court''s custody. This brings us to Section 3, Sub-Sections 1 and 2 of the
Prisons Act of 1894, which reads as follows:
3(1) - prison means any jail or place used permanently or temporarily under the general or special orders of a State Government for the detention
of prisoners, and includes all lands and building appurtenant thereto, but does not include -
(a) any place for the confinement of prisoners who are exclusively in the custody of the police.
(b) any place specially appointed by the State Government u/s 541 of the Code of Criminal Procedure, 1882 (10 of 1882) or
(c) any place which has been declared by the State Government by general or special order to be a subsidiary jail.
3(2) - Criminal prisoner means any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising
criminal jurisdiction, or by order of a Court Martial.
So, ""criminal prisoner"" is one who is duly committed to custody under the writ, warrant or order of any Court. This custody of a criminal is Court''s
custody in jail and such custody, other than the policy custody, is contemplated u/s 167 Sub-section (2) of the Code of Criminal Procedure during
the investigation stage. For a term of 15 days at a time a criminal Court, during investigation, may keep an accused in policy custody but if the
Court wants the custody of the accused other than in police custody during investigation the custody of such accused must be in jail since the
accused in custody by Court''s order is a ''criminal prisoner'' as Section 3, Sub-section (2) of the Prisons Act, 1894 provides. After the trial by a
criminal Court is concluded and the accused has been awarded punishment of imprisonment of either description he cannot be kept in the custody
of the Court within the Court''s precincts or can be kept in the jail custody as a ""criminal prisoner"" as defined u/s 3(3), Sub-section (2) of the
Prisons Act, 1894. The accused convicted and sentenced to imprisonment becomes a ''convicted criminal prisoner'' as defined by Section 3, Sub-
Section 3 of the Prisons Act, 1894, which reads as follows:
3(3) ''Convicted criminal prisoner'' means any criminal prisoner under sentence of a Court or Court Martial, and includes a person detained in
prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1882 (10 of 1882) or under the Prisoners Act, 1871 (5 of
1871)."" A convicted criminal prisoner under a sentence of a Court, and a ""criminal prisoner"" means any prisoner duly committed to the custody
under writ, warrant or order of any Court.
24. Chapter XXIV under the heading ""General provision as to inquiries and trials"" of the Code of Criminal Procedure 1898 commences with
Section 337. Sub-Section 3 of Section 337 relates to an approver who has accepted pardon, and enjoins ""such person"", unless he is already on
bail, shall be detained in custody until the termination of the trial."" The Division Bench of the Lahore High Court in the case of (3) AIR 1931 353
(Lahore) had to consider Section 337 Sub-Section 3 of the Code of Criminal Procedure. At column 2 of page 356 of the report, the Court
observed:
As shown above the nature of the custody contemplated by law in the case of an accused person during the enquiry or trial is judicial custody or
confinement in a ''prison'' and an approver must be detained in similar custody.
Judicial custody, therefore, relates to an accused who is a ""criminal prisoner"" within Section 3, Sub-section (2) of the Prisons Act, 1894. In
Chapter XXIV of the Code of Criminal Procedure referred to above, we find Section 351 Sub-section (1) in which the following provisions
appear -
(1) Any person attending a criminal Court, although not under arrest or upon a summons, maybe detained by such Court for the purpose of inquiry
into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may
be proceeded against as though he had been arrested or summoned.
25. During enquiry or trial a criminal Court may detain a person attending the Court under such situation as envisaged by Sub-section (1) of
Section 251 of the Code of Criminal Procedure. We notice the words ''detained by the Court"". This, detention does not mean within Court''s
precincts or in the Court room. This detention contemplates detention in jail of such person, considered as a ""criminal prisoner"" u/s 3, Sub-section
(2) of the Prisons Act, 1894. So, a person attending a criminal Court, even if not under arrest, or upon summons may be detained by such Court
for either of the two purposes - (i) for the purpose of enquiry into, or (ii) trial of any offence relating to such person of which such Court can take
cognizance. Section 352 of the Code under Chapter XXIV reads as follows:
352. The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to open Court, to which
the public generally may have access, so far as the same can conveniently contain them . . . .
26. This Section clearly says that the place in which any criminal Court is held for either of the two purposes - (i) inquiring into, or (ii) trying any
offence shall be an open Court. So a ""criminal Court"" is a place for the purpose of inquiring into or trying an offence. After a person has been
found guilty at the conclusion of a trial for an offence and has been awarded a punishment prescribed by law, say of imprisonment either simple or
rigorous, the trial is at an end. With the end of the trial, the place where the offender was tried, convicted and sentenced ceases in regard to such
offender to be ""a Court"" i.e. a place for the purpose of enquiring into or trying for the offence of which he had already been tried, convicted and
sentenced by the Court. Sub-Section 2 of Section 351 of the Code of Criminal Procedure refers also to the detention of any person attending a
criminal Court in course of an enquiry under Chapter XVII of the Code which speaks of enquiry into cases triable by the Court of sessions or the
High Court. So, the detention by criminal Court during enquiry or trial as Section 351, Sub-sections (1), and (2) of the Code of Criminal
Procedure contemplate, does not mean ""within the court-room or in Court precincts"". ""Custody of the Court"" does not mean within the precincts
of the Court house or else the definition of a ""criminal prisoner"" in Section 3(2) of the Prisons Act shall have no practical significance in law. It is
clear from Section 252 of the Code that the place in which any criminal Court is held for the purpose of enquiry into or trying any offence shall be
an open Court but the Section does not say that after a person has been tried, convicted and sentenced for an offence by any criminal Court, the
place where such person was tried shall be, in regard to such person, an ""open Court"" for the purpose of his custody by such Court for execution
of the sentence. So soon as a criminal Court finishes an enquiry, or a trial, of an offender, in regard to such person, the location of such Court
premises ceases to be an ''open Court'' within the meaning of Section 252 of the Code of Criminal Procedure. Such person, if required to be kept
in custody confined under the provisions of any law by the order of the Court, must be lodged at a place as Section 541, Sub-section (1) of the
Code enjoins in the terms as ""unless otherwise provided by any law for the time being in force, the State Government may direct in what place any
person liable to be imprisoned, or committed to custody under this Code shall be confined."" This provisions is to be read and considered with
several other provisions in the Code of Criminal Procedure ., 1898 as well as with the relevant provisions of the Prisons Act and the rules framed
thereunder in West Bengal by the State Government. We shall now discuss such relevant provisions of the Code of Criminal Procedure, 1898,
Prisons Act, 1894 and the rules framed by the State of West Bengal in order to decide whether the punishment reading as ""sentenced to T.R.C.
or ""sentenced to detention till the rising of the Court"" or ''sentenced to imprisonment till rising of the Court.'' is a sentence valid under the law, and if
valid, can legally be executed. We may here and now say that having regard to the provisions of Section 53 (fourthly) and Section 60 of the Indian
Penal Code and Section 32 of the Code of Criminal Procedure a punishment reading as ''sentenced till rising of the Court'' or a punishment reading
as ''sentenced to T.R.C.'' or a punishment reading as ''sentenced to imprisonment till rising of the Court'' cannot be a punishment according to the
provisions of law as laid down in the Sections quoted above. There is no punishment in Section 53 of the Indian Penal Code reading as ''sentenced
till rising of the Court'' or ''sentenced to T.R.C. Imprisonment, if awarded as a punishment must be either simple'' or rigorous and such character of
imprisonment must appear in the order of the Criminal Court sentencing an offender to any punishment of imprisonment. So, a punishment reading
as ''sentenced to imprisonment till rising of the Court'' cannot be read as that the imprisonment is either simple or rigorous. So, such a sentence also
would clearly violate the provisions of Section 53, (fourthly) and Section 60 of the Indian Penal Code, and also Section 32 of the Code of Criminal
Procedure which empowers a Magistrate to award punishment of such imprisonment as a sentence as is authorized by law. So, a punishment of
imprisonment as authorized by law can only be awarded by the Magistrate, but not a punishment reading as ''sentenced to T.R.C."" or ''sentenced
till rising of the Court'', nor ''sentenced to imprisonment till rising of the Court'', since neither of such punishments can be found in Section 53
(fourthly) and any order by the criminal Court as well as of a Magistrate imposing any of such punishments by way of a sentence would be in clear
violation of Section 60 of the Indian Penal Code, as also of Section 32 of the Code of Criminal Procedure in particular in regard to a Magistrate.
We shall now point out that neither of the three punishments discussed above, if imagined to be a punishment of imprisonment, can be executed
according to law within the precincts of the Court or in the Court-room.
27. Section 245, Sub-section (20 of the Code of Criminal Procedure reads as follows:
Where the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty,
pass sentence upon him according to law.
Section 258, Sub-Section 2 of the Code enjoins ""where in any case under this Chapter (Ch. XXI) the Magistrate does not proceed in accordance
with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty, pass sentence upon him according to law."" Chapter
XXIV, under the heading ''General provisions as to inquires and trials'' in Section 337 (3), relating to an approver who has accepted pardon
provides ""such person, unless he is already on bail, shall be detained in custody until the termination of the trial."" In order to explain the expression
''shall be detained in custody until the termination of the trial'' in Sub-Section 3 of Section 337 of the Code. Mr. Ghosh, the learned Advocate
representing the State of West Bengal drew our attention to the decision of the Division Bench of the Lahore High Court in the case of (3)
Kundanlal and Ors., reported in AIR 31 Lah 353 already referred to. In column 1 at page 357 of the report the Division Bench of the Lahore High
Court observed: ""Moreover, ample provision under the Prisons Act has been made and exists in Lahore for the confinement of persons liable to be
imprisoned or committed to custody . . . ."" There the approver was lodged in the police custody. Section 541, Sub-Section 1 of the Code of
Criminal Procedure opens with the expression ""unless when otherwise provided by any law for the time being in force, the State Government may
direct in what place any person liable to be imprisoned or committed to custody under this Code, shall be confined. The Sub-Section 1 of Section
541 of the Code of Criminal Procedure therefore to be read with Sections 3(1), 3(2) and 3(3) of the Prisons Act, 1894 (Section 3, Sub-Sections
1, 2 and 3 of the Prisons Act 1894 already quoted).
28. In the Lahore case, the Government had already declared ""prisons"" under the Prisons Act, but the approver, by the order of the Punjab
Government, as it then was, was directed to be confined in a portion of the Lahore Fort which was then in occupation of the police. Under Clause
(a) as Section 3, Sub-Section 1 of the Prisons Act, that place was not included within the definition of a prison. So, the confinement by the order
of the Court in custody, of the approver, other than in Lahore Jail, was held contrary to the provisions of Section 541, Sub-Section 1 of the Code
of Criminal Procedure read with Section 3, Sub-Sections 1 and 2 of the Prisons Act, and as such illegal. An approver was held in the Lahore case
to be a criminal prisoner'' and as such the Court ordering his custody not in jail but in the Lahore Fort in occupation of the police even under the
authority of the State Government''s notification appointing such place for confinement of the approver was also held contrary to law, since, u/s
541, Sub-Section 1 of the Code of Criminal Procedure, the State Government has already declared a place to be a jail in Lahore under Sub-
Section 1 of Section 3 of the Prisons Act where a ''criminal prisoner'' such as an approver, could be or could have been confined in custody by the
order of the Court, we have already quoted the provision of Sub-section (2) of Sections 245 and 258 of the Code of Criminal Procedure, Sub-
section (2) of Section 367 of the Code under Chapter XXVI of the Code of Criminal Procedure . . . . judgment . . . . reads as follows: -
Section 367(2) - ""It shall specify the offence if any, for which and the Section of the Indian Penal of which or other law under which the accused is
convicted and the punishment which he is sentenced.
29. We have already observed that the punishment of imprisonment is of two classes as in Section 53 fourthly on the I.P.C. Section 60 of the
Indian Penal Code and the Sub-Section 2 of Sections 245, 258 and 367 of the Code of Criminal Procedure make it abundantly clear that when a
criminal Court punishes an offender to imprisonment it shall besides other things, specify the class of imprisonment to which the offender is
punished by the Court. Sub-section (2) of Section 366 of the Code of Criminal Procedure amongst other things says:
The accused shall, if in custody be brought up or if not in custody, required by Court to attend . . . . pleader.
30. We have pointed out that Section 337(3) of the Code of Criminal Procedure there is the expression ""shall be detained in custody under
termination of the trial."" Section 366(2) also contains the expression custody"". So, the expression ''in custody'' in Sub-section (3) of Section 337
and in Sub-section (2) of Section 366 of Code of Criminal Procedure must *** the judicial custody i.e. the jail custody in relation to a ''criminal
prisoner'' as already explained by us. Sub-section (2) of Sections 245, 258 and 367 of the Code of Criminal Procedure not warrant that while
award punishment to an offender a criminal Court shall direct in the judgment the sentence shall be executed. The punishment to which an offender
sentenced by a criminal Court read as either ''sentenced to T.R.C.'' or sentenced till rising of the Court'' or ''imprisonment till rising of the Court''
clearly indicate that not an illegal punishment has been awarded but also its mode of illegal execution has been prescribed by the Court. After
Chapter XXVI of the Code of Criminal Procedure Re. Judgment . . . .come the relevant chapter XXVIII - of Execution under the Code of
Criminal Procedure. Then chapter begins with Section 381. A criminal Court, after the conclusion of the trial which culminates in awarding of,
punishment by way of a sentence to the offender, shall have to follow the procedure, in case of a punishment by way of imprisonment, the
provisions of Sections 383, 384 and 400 red with Section 555, Schedule V, Form XXIX. The Form XXIX in Schedule v. of the Code of
Criminal Procedure has been prescribed under Sections 245 and 258 of the Code of Criminal Procedure. Sections 383, 384, 385, 400 and
Section 555, Schedule V, Form No. XXIX read as follows:
Section 383: Where the accused is sentenced to (imprisonment for life) or imprisonment in cases other than those provided for by Section 381 the
Court passing the sentence shall forthwith forward a warrant to the jail in which he is, or is to be confined, and, unless the accused is already
confined in such jail, shall forward him to such jail with the warrant.
Section 384: Every warrant for the execution of a sentence of imprisonment shall be directed to the officer-in-charge of the jail or other place in
which the prisoner is,, or is to be, confined.
Section 385: When the prisoner is to be confined in a jail, the warrant shall be lodged with the jailor.
Section 400: When a sentence has been fully executed the officer executing it shall return the warrant to the Court from which it issued with an
endorsement under his hand certifying the manner in which the sentence has been executed.
Section 555: Subject to the power conferred by Section 554 and by Article 227 of the Constitution, the Forms set forth in the fifth schedule, with
such variation as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient.
Form XXIX - Warrant of commitment on a sentence of imprisonment or fine if passed by a Magistrate (Sections 245, 258).
To the Superintendent (or keeper) of the jail at . . . .
Whereas on the day of - 18 - (name of prisoner) the 1st, 2nd, 3rd as the case may be) prisoner in case No. - of the Calendar for 18 -, was
convicted before me (name and official designation) of the offence of (mention the offence or offences concisely) u/s (or Sections) - of the Indian
Penal Code (or of Act) and was sentenced to (state the punishment fully and distinctly):
This is to authorize and require you, the said Superintendent (or keeper) to receive the said (prisoner''s name) into your custody in the said jail,
together with this warrant, and there carry the aforesaid sentence into execution according to law.
Given under my hand and the seal of the Court.
This day of , 18
Signature
31. We have already quoted Sub-section (1) of the Section 541 of the Code of Criminal Procedure where it has been clearly laid down that unless
when otherwise provided by law for the time being in force, the State Government may direct in what place any person liable to be imprisoned or
committed to custody under this Code shall be confined. We have already observed that under ''the Prisons Act jails have been set up and
maintained as a place where a person liable to be imprisoned or committed to custody under the Code of Criminal Procedure shall be confined.
So, a jail or a prison set up and maintained under the Prisons Act is the only place where any person liable to be imprisoned or committed to
custody under the Code of Criminal Procedure shall be confined, but no other place. Under the special laws, as we shall discuss hereunder, by
way of illustration, the State Government may set up places where any person, particularly a juvenile offender liable to be imprisoned or committed
to custody under the Code of Criminal Procedure shall be confined. Sub-section (2) of Sections 245, 258 and 367 are to be read with Sections
383, 384, 385, 400 and 541(1) and Section 555 of the Code of Criminal Procedure and Form No. XXIX of schedule v. of the Code of Criminal
Procedure, keeping in view that u/s 541(1) of the Code of Criminal Procedure jails have been set up and are being maintained in West Bengal,
under the provisions of the Prisons Act, as already quoted and discussed, by the State Government. After a criminal court by its judgment convicts
an offender and sentences him to the punishment of imprisonment of either description as authorized by law, the Court shall have to issue custody
warrant to the keeper of the jail in the form prescribed as in Schedule v. of the Code of Criminal Procedure referred to above. ""The custody
warrant"" in the prescribed form quoted above stems out of an order of the Court following the order of conviction and sentence awarded at the
conclusion of the trial by a criminal Court. The warrant mentioned in Section 383 of the Code shall be in the form referred to above to be issued
by the order of the Court, addressed to the jailor or execution of the sentence of imprisonment. Therefore, Section 383 of the Code controls
Sections 345(2), 258(2) and 367(2) of the Code when punishment is of imprisonment. In the case of (4) K. P. Iswarmurty v. Emperor reported in
48 CWN 477, the Privy Council at page 478 of the report while discussing the legal concept, scope and content of Form II, warrant of arrest,
prescribed u/s 75 of the Code of Criminal Procedure, in Schedule v. of the Code interpreted such form in the following way after quoting the form:
The form prescribed for such a warrant is set out in schedule v. of the Code . . . . A warrant or order of this character is a public document.
32. A warrant in the Form II of schedule v. as well as warrant in Form XXIX in Schedule v. of the Code of Criminal Procedure is an order of the
Court in the terms as set forth in the prescribed forms . . . . former u/s 75 and the latter u/s 245(2), 258(2) and 367(2) of the Code of Criminal
Procedure, 1898. So, following upon the judgment of a criminal Court convicting and sentencing an offender to the punishment of imprisonment,
the Court shall pass an order issuing the warrant i.e. custody warrant, in the Form prescribed addressed to the keeper of the jail, for confining a
''convicted criminal prisoner to undergo the sentence of imprisonment in the jail. The warrant shall be lodged with jailor who after execution of the
sentence of imprisonment shall send the warrant back to the issuing Court certifying the execution of the sentence of imprisonment in terms of the
warrant. So, the combined effect of the provisions of law in the Sections and the form just referred to, and discussed above, is that at the
conclusion of the trial when a criminal Court sentence an offender to a punishment of imprisonment which should be indicated in the judgment,
being either simple or rigorous or partly simple or partly rigorous, the Court shall have to record an order issuing custody warrant to the jailor for
confinement of the offender, sentenced to the punishment of imprisonment for undergoing such sentence in the jail which has been set up and
maintained by the State Government under the provisions of the Prisons Act referred to above read with the provisions of Section 541(1) of the
Code of Criminal Procedure. The expression ""other place"" in Section 384 of the Code of Criminal Procedure may refer to places such as
Reformatory Schools, Bengal Borstal School and Industrial Schools and Reception Home set up and maintained by the State Government under
the Reformatory Schools Act, 1897, Bengal Brostal Schools Act, 1928 and West Bengal Children Act, 1959, specially in regard to certain classes
of juvenile offenders within certain specified areas in West Bengal. Mr. Ghosh for the State, however, submitted that ""other place"" in Section 384
of the Code might refer to a Court precincts. We could not accept his submission as sound in law. Section 384 of the Code requires a warrant of
imprisonment to be directed to the Officer-in-Charge of the Jail or to the Officer-in-Charge of the ''other place'' in which the person is or is to be
confined. The Presiding Judge of a Court or a Magistrate of a criminal Court can neither be the Officer-in-Charge of the jail nor an Officer-in-
Charge of ''other place'' where the person is or is to be confined under the Code of Criminal Procedure. ''Other place'' in Section 384 of the Code
may include such places as set up and maintained by the State Government by any law, other than the Prisons Act, for confinement of person liable
to imprisonment or committed to custody under the Code of Criminal Procedure. ''Other place'' in Section 384 of the Code may also include a
place where no law prescribes a place, to be set up and maintained by the order of the State Government, for confinement of any person, liable to
be imprisoned or committed to custody, under the Code of Criminal Procedure, but so set up and maintained by the State Government, under an
executive order, as enjoined by Section 541(1) of the Code of Criminal Procedure. Under no law in force in West Bengal, a court-house has been
declared a place for confinement of a person liable to be imprisoned or committed to custody under the Code of Criminal Procedure. We have not
been referred to any executive order of the State Government by which it has declared the court-house of any criminal Court to be the place for
confinement of any person liable to be imprisoned or committed to custody under the Code of Criminal Procedure. No executive order of the
State Government can declare a Court house to be a place for confinement of any person liable to be imprisoned or committed to custody under
the Code of Criminal Procedure when the State Government have already, under the provisions of the Prisons Act read with Sub-Section 1 of
Section 541 of the Code of Criminal Procedure, 1898 discussed above, set up and have been maintaining jails in West Bengal for confinement of
any person liable to be imprisoned or committed to custody under the Code of Criminal Procedure. The State Government, by an executive order
can set up and maintain a place for confinement of any person liable to be imprisoned or committed to custody under the Code of Criminal
Procedure in view of the Provisions of Section 541(1) of the Code when under the provisions of any law in force such place has not already been
established and maintained by the State Government. So, by, no stretch of imagination ''other place'' in Section 384 of the Code can include the
Court-house when the State Government have already set up and have been maintaining jails in West Bengal for confinement of any person liable
to be imprisoned or committed to custody under the Code of Criminal Procedure. Accordingly, ""other place"" in Section 384, and ''in what place''
in the context of Sub-section (1) of Section 541 of the Code cannot mean and include a Court-room or a court''s precincts as a place for
confinement of a convicted criminal prisoner ''punished with a sentence of imprisonment of either description for whatsoever term it may be'', or
''criminal prisoner'' committed to custody for confinement under the Code of Criminal Procedure, when in West Bengal, the State Government
under the provisions of the Prisons Act, have already established and have been maintaining prisons or jails. A juvenile offender under the West
Bengal Children Act, 1959, if and when sentenced to imprisonment under extreme circumstances, is not required under the law to be confined to
any jail, and in such a case, the Magistrate sentencing a juvenile offender to imprisonment is to detain the juvenile delinquent in such custody as it
may think fit, and is required to report to the State Government for fixing of a place where the juvenile offender may be detained in custody as
proviso to Sub-Section 2 of Section 24, and Sub-section (3) of Section 24 of the West Bengal Children Act, 1959 read as follows: -
Section 24, Proviso to Sub-section (2):
Provided that where the Court is satisfied that the offence committed by the juvenile delinquent is of so serious a nature or that he is so unruly or of
so depraved a character that he is not a fit person to be sent to a reformatory or borstal school, the Court may sentence him to imprisonment for a
period not exceeding the maximum period of imprisonment to which he could have been sentenced for the offence committed, and the Court shall
report the case to the State Government and direct the juvenile delinquent to be detained in such custody as it may think fit; and
(3) on receipt of a report from the Court under Clause (2), the State Government may make such arrangement in respect of such juvenile
delinquent as it deems proper and may at any time order him to be released from custody on such conditions, if any, as the State Government may
think fit to impose.
In such custody a sit (sic) may think fit ''in the proviso to Sub-section (2) of Section 24 of the West Bengal Children Act, 1959 may well include
the prison since in Section 541(1) of the Code of Criminal Procedure, the State Government has already set up and has been maintaining jails for
any person to be confined on imprisonment or otherwise than on imprisonment in custody under the Code of Criminal Procedure but cannot
include a place in the Court-house of the Magistrate. It may also include the Reception Home set up and maintained under the West Bengal
Children Act, 1959. Ad interim custody as provided for in the proviso to Sub-section (2) of Section 24 of the West Bengal Children Act, 1959
cannot, therefore, include a place in the Court-house. The State Government may, however, as Sub-Section 3 of Section 24 of the West Bengal
Children Act, 1959 provides, by an executive order, set up and maintained under the provisions of the Prisons Act for confinement of a juvenile
offender sentenced to imprisonment by a Magistrate in the circumstances discussed above under the provisions of Sub-section (1) of Section 541
of the Code of Criminal Procedure.
33. When by a judgment of a criminal Court, as we have already noticed in relation to Sub-section (2) of Sections 245, 258 and 367 of the
Criminal Procedure Code, an offender is sentenced to imprisonment, such sentence punishing the offender under the law, in force, shall be, as
Sections 53 and 60 of the Indian Penal Code direct, either simple or rigorous or partly simple or partly rigorous, and specification of the class of
sentence shall appear in the judgment of a criminal Court since the courts of Magistrate as Section 32 of the Code of Criminal Procedure enjoins
may sentence an offender to imprisonment as authorized by law. But, Sub-section (2) of Sections 245, 258 and 367 of the Code of Criminal
Procedure do not provide that a criminal Court sentence an offender to imprisonment may direct that the imprisonment either simple or rigorous
shall be executed at a place, such as at the Court room, other than at the jail set up and maintained by and under the provision of Section 541,
Sub-section (1) of the Code of Criminal Procedure read with Sub-Sections 1 and 3 of Section 3 of the Prisons Act, 1894 and in a manner
contrary to the provisions of Section 383, 384, 385 and 400 read with Section 555, form No. XXI, Schedule V, framed under Sections 245 and
258 of the Criminal Procedure Code. So, a judgment or order of the Criminal Court, specifying the execution of a sentence reading as ""sentenced
to detention till rising of the Court"" or ""sentenced to T.R.C."" or ""sentenced to imprisonment till rising of the Court"" neither of which can be
considered as a sentence of imprisonment authorized by law, as discussed above, would make the judgment illegal as also the detention of the
offender in Court in execution of such illegal sentence. As regards the form referred to above, it is needless to say that it is as such a part of the
Code of Criminal Procedure as any other portion of the Code and is most useful in throwing light on the meaning of the provisions in law in
connection with which the Form has been prescribed under the law and is to be used. The form referred to above, does not override the
provisions of Sections 245(2), 258(2), 267(2), 383, 384, 385 and 400 and Sub-section (i) of Section 541 of the Code of Criminal Procedure
read with Sub-sections (1), (2) and (3) of Section 3 of the Prisons Act, 1894. We have noticed that the Division Bench of the Madras Court in the
case reported in (2) In Re: Muthu Nadar, referred to earlier in this judgment did not consider the provisions of law in the several Sections of the
Indian Penal Code, Code of Criminal Procedure and the Prisons Act, which we have in this judgment referred to and considered in the context of
the present case to find the illegality and impropriety of a punishment and its execution in the Court precincts in a case where a criminal Court
sentences an offender to ""T.R.C."" or to detention till rising of the Court,"" or ""to imprisonment till rising of the Court"". Therefore, on a careful
consideration of the law, as we have discussed, we respectfully disagree with the views of the Division Bench of the Madras High Court in the case
report in (2) AIR 1945 Mad, 313. In our view, the punishment by a sentence, awarded by a criminal Court reading as ''imprisonment till rising of
the Court'' is illegal, so also the punishment sentencing an offender to detention till rising of the Court'', or sentencing an offender ""till rising of the
Court"", and a criminal Court has no jurisdiction to deprive the liberty of an offender sentencing him to an illegal punishment and to detain him in
execution of such illegal punishment in Court contrary to the provisions established both by the substantive and procedural laws we have discussed
and considered.
34. Mr. Ghosh, the learned Advocate appearing on behalf of the State drew our attention to a decision of the Division Bench of this Court in the
case (5) 53 CWN 106 in order to support the legality of a punishment awarded by a criminal Court sentencing an offender to a detention till rising
of the Court, and to another offender to rigorous imprisonment for one day, who suffered the sentence without being lodged in the jail. The
Petitioners before the High Court were father and son. The father was sentenced to rigorous imprisonment for one day and to pay a fine of Rs.
100/-, the son was sentenced to be detained till the rising of the Court. The relevant portion of the judgment is as follows:
We should here point out that the learned Magistrate apparently was under the impression that rigorous imprisonment for one day and detention
till the rising of the Court were different punishments and there has been some trouble in the lower Court because the learned Magistrate wished to
insist on sending the accused to jail. We should point out that in the case of imprisonment for one day as the day on which the sentence is passed,
counts as one day, the accused could not be detained in jail on a warrant issued for such a period. In other words, there should be no further
trouble on this point. The accused must be taken to have suffered this imprisonment.
35. Their Lordships found the sentence of rigorous imprisonment for one day to be a valid sentence under the law. We respectfully agree with this
view. As regards the sentence ""to be detained till rising of the Court,"" their Lordships did not make any observation as to whether such a sentence
was a sentence of imprisonment, authorized by law, capable of execution by detaining the offender in the Court room till the rising of the Court. As
that decision of the Division Bench of this Court did not make any observation to indicate whether such a punishment unthinkable in law was a
sentence of imprisonment authorized by law and capable of execution by detaining the offender in the Court-room till rising of the Court, the
question remains open for our decision in the present case. The Rules in Calcutta Gazette, extraordinary, dated Wednesday, June 8, 1966,
Notification No. nvvvvvvvvvvn1325 H.J. dated 8th June, 1966 framed u/s 59 of the Prisons Act, called the West Bengal Jail Code appearing at
pages 1962 to 2102 of Part (1) of that Gazette, were complied in the Jail Code, Vol. I, 1967 Edition, published by the State of West Bengal.
Corresponding to para 524 of the West Bengal Jail Code, Vol. I 1967 Education. Is Rule 231 of the Jail Code Rules, referred to above. The
Rules, called Jail Code Rules, have been in force in West Bengal in suppression of all the rules on the subject except those mentioned in the
Notification. Rule 231 at page 2012 of the Gazette under the heading ""method of calculating duration of prisoner''s sentence"", provides amongst
other things as follows:
A prisoner sentence to one day''s imprisonment must be released on the same day, but if he is sentenced to imprisonment for 24 hours he shall be
kept in confinement for that period. In such a case however, the committing Court should be required to specify the hour from which the sentence
should begin. If the month from which the sentence should expire has no date corresponding to the date of sentence, then the last day of the said
month must be taken to be the date of expiration of sentence.
36. So, according to the Rule 231 of the Jail Code a prisoner sentenced to imprisonment for a day, if lodged in jail in course of that day, must be
released before the sunset of that day, Jail Code Vol. I, 1967 Education. Paragraph 573 is to be read with Rule 22, Chapter I, para a(A) of the
Criminal Rules and Orders Vol. (I) of the Calcutta High Court. The para 573 of the Jail Code, as it appears at page 160, Vol. I of the Jail Code,
contains in the relevant provisions, all those that are mentioned in Rule 22 of the High Court Criminal Rules and Orders, Vol. I which reads as
follows:
Rule 22 - As Rule 573, Bengal Jail Code, prohibits the release of prisoners after lock up, warrant for release shall not be dispatched by a court
after sun-set, or if so dispatched, shall be endorsed with the instruction for release as early as possible next morning.
37. So, for undergoing rigorous imprisonment for a day, the ""Criminal convicted prisoner shall be confined in jail under a custody warrant"" to be
issued by the Court to the jailor under the relevant provisions of the CPC as we have already discussed earlier in this judgment. The warrant of
release from jail custody in case of such prisoner must be sent to the jailor before sun-set of the day and sent to the jailor at a time when sun has
already set, there should appear in the warrant an order of the Court for release of such prisoner on the following morning. Therefore, execution of
a day''s simple or rigorous imprisonment by confinement in a jail may not ordinarily create any legal or factual difficulty. The Calcutta High Court
framed Rule 22 keeping in view the rule similar to the current Rule 231 of the Jail Code Rules then in force, and also the provisions in paragraph
573 of the Jail Code, Vol. I, 1967. The relevant provisions of paragraph 573 of the West Bengal Jail Code, Vol. (I) 1967 Edition, page 106
contain mattes similar as in Rule 22 of the High Court Rules and something more which reads as follows:
No prisoner shall on any account be released after lock-up. Warrants for release should not be dispatched by a Court after sunset, or, if so
dispatched should be endorsed with instructions for release as early as possible next morning. Ordinarily prisoners shall be released after they have
partaken of their morning meal, and as soon after sunrise as possible (see Rule 78)"".
38. Before their Lordships ( (5) 53 CWN 106 ) the only question that was decided was whether the sentence of rigorous imprisonment for a day
could be executed under the law by confining the convicted criminal prisoner in jail for the day. Their Lordships observed:
We should point out that in the case of imprisonment for one day, as the day on which the sentence is passed, counts as one day, the accused
could not be detained in jail on a warrant issued for such a period.
We have quoted the Rule 231 of the Jail Code now in force and paragraph 573 of the Jail Code, 1967 Education. Vol. (1) and Rule 22 of the
High Court Criminal Rules and Orders, Vol. (I), 1950. Now, therefore, there would be no difficulty for confining in jail an offender for a day to
undergo rigorous imprisonment for a day in jail. Such a sentence is perfectly legal in our view and such a sentence should be executed in jail. Their
Lordships in their observation noted that there would be difficulty in sending the warrant to the jail for execution of a sentence of rigorous
imprisonment for a day. Their Lordships, however, did not make any pronouncement regarding the legality of the sentence reading as ""detained till
rising of the Court."" Before their Lordships, the sentence was not like the one as in the present Revision Case No. 803/67 reading as ""sentenced to
T.R.C."" In the sentence there is no word ''imprisonment'' nor the word ''detention''. The punishment reading as ""sentenced to T.R.C."" as awarded
to the Petitioner in the Revision Case No. 803/67 was not a sentence according to law and execution of such an illegal sentence by detention of the
Petitioner in Court for a day had also been illegal and without jurisdiction. We made it also clear that a punishment reading as ""detained till rising of
the Court"" is not a sentence known to law and detention in execution of such an illegal sentence in Court would be illegal and ultra vires the
jurisdiction of the Court awarding such punishment and executing such punishment in Court. Even a punishment reading as ""sentenced to
imprisonment till rising of the Court"" would be no sentence according to law and execution of such illegal sentence by detaining the ""convicted
criminal prisoner"" in Court till rising of the Court would be illegal and ultra vires the jurisdiction of the Court. The punishment of imprisonment of
either description for a day is legal and can in West Bengal be executed under the law as we have already discussed.
39. Mr. Ray drew our attention to the relevant provision of paragraph 3 of Cement (Quality Control) Order 1962:
3. Prohibition of manufacture sale etc. of cement which is not of the prescribed standard: No person shall himself or by any person on his behalf
manufacture or store for sale, sell or distribute any cement which is not of the prescribed standard.
40. It is clear from the provision of paragraph 3 that a person shall not himself or any person on his behalf do any of these acts as specified therein.
So, the liability for infringement of paragraph 3 is on the person who either himself or by any person on his behalf does any of the prohibited acts as
specified in paragraph 3 of the order. Mr. Ray, the learned Advocate for the accused Petitioner, however, submitted that the person doing any of
the prohibited acts as in paragraph 3 of the order, not on his own account but on behalf of another, has not been made liable. So, Mr. Ray
contended that if the accused Petitioner Sheo Sankar as the alleged Manager of Agya Ram sold the offended cement to the complaint, he did it on
behalf of the owner of the shop i.e. Agya Ram and it was only Agya Ram who could be charged for an offence punishable u/s 7, Sub-section (1)
(a) (ii) read with paragraph 3 of the Cement (Quality and Control) Order, 1962 but not the accused Petitioner Sheo Sankar. We appreciate the
argument of Mr. Ray but we would not at this stage express our views on the point since we are making both the rules absolute with a direction for
framing a charge against both Agya Ram and Sheo Sankar for such offence or offences as would appear from the materials that would be
considered by the learned Magistrate before framing charge against both of those accused persons and for their re-trial on the charges to be
framed. We would; however, like to draw the attention of the learned Magistrate in the Court below to a decision of the Supreme Court in the
case of (6) Sarjoo Prasad Vs. The State of Uttar Pradesh, , that was a case of sale of adulterated articles of foodstuff by a servant of the owner.
There, Sections 7, 16 and 19 of the Prevention of Food Adulteration Act, 1954 had been considered by their Lordships of the Supreme Court.
Section 7 of the said Act in material portion provides:
No person shall himself or by any person on his behalf sell . . . . (i) any adulterated food.
The material part of Section 16(1) provides:
If any person whether by himself or by any person on his behalf sells . . . any article of food in contravention of the provisions of this Act . . . . or . .
. . he shall . . . . be punishable.
41. In the prevention of Food Adulteration Act, 1954 the word ""person"" has not been defined. In the Essential Commodities Act, 1955 the word
''person'' has also not been defined. The terms of Section 7 of that Act beginning with ''no person shall himself or by any person on his behalf . . .
sell . . . ."" have already been quoted. We have already quoted paragraph 3 of the Cement (Quality and Control) Order, 1962 wherein it has been
laid down that ""No person shall himself or by any person on his behalf . . . sell . . . any cement which is not of the prescribed standard. ""Section
7(1) of the Essential Commodities Act, 1955 commences with the following words: ""If any person contravenes any order made u/s 3 (a), he shall
be punishable . . . . Clause (i) . . . . and Clause (ii) in the case of any other order, with imprisonment for a term which may extend to three years
and shall also be liable to fine; provided that, if the Court is of opinion that a sentence of fine only will meet the ends of justice, it may, for reasons
to be recorded, refrain from imposing a sentence of imprisonment; ""We have already quoted the material part of Section 16(1) of the Prevention of
Food Adulteration Act, 1964. It is clear from the provisions of Section 7 and Section 16(1) of the Prevention of Food Adulteration Act, 1954 and
Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and paragraph 3 of the Cement (Quality and Control) Order, 1962 that there are
certain common expressions in the provisions of the Sections of the two Acts quoted above such as ""no person shall himself or by any person on
his behalf . . . . sell . . . . common to Section 7 of the Prevention of Food Adulteration Act, 1954 and paragraph 3 of the Cement (Quality and
Control) Order, 1962. In Section 16(1) of the Prevention of Food Adulteration Act, we get ""if any person whether by himself or by any person on
his behalf . . . . . . . . . . . . . sells . . . . . . . . . ."" but in Section 7(1) of the Essential Commodities Act, we do not find the expression ""whether by
himself or by any person on his behalf"", but we find the expression ""one person shall himself or by any person on his behalf . . . . sell"" in paragraph
3 of the Cement (Quality and Control) Order, 1962. That paragraph 3 of the said order shall have to be read with Section 7(1)(a)(ii) of the
Essential Commodities Act, 1955 because an alleged contravention of the prohibition in paragraph 3 of the Cement (Quality and Control) Order,
1962, being an order u/s 3 of the Essential Commodities Act, 1955 has been made punishable if any person contravenes any order. So, the
combined effect of the material part of Section 7 and Section 16(1) of the Prevention of Food Adulteration Act, 1954 is the same as the combined
effect of Section 7(1)(a)(ii) read with paragraph 3 of the Cement (Quality and Control) Order, 1962. Keeping in the background what we have
just observed, the Supreme Court in the case referred to above, (6) ( Sarjoo Prasad Vs. The State of Uttar Pradesh, at page 632 of the report)
observed:
The expression ''person'' has not been denied in the Act and in the context in which that expression occurs, it prima facie, includes every one who
sells adulterated food. By the collocation of the expression ""no person shall himself or by any person on his behalf . . . . ."" the employer alone is not
prohibited. The intention of the legislature is plain. Every person, be he an employer or an agent, is prohibited from selling adulterated food and
infringement of the prohibition is by Section 16 penalised . . . . Prohibition of sale of adulterated food is evidently imposed for the larger interest of
the maintenance of public health. The prohibition applies to all persons who sell adulterated food and for contravention of the prohibition all such
persons are penalized. Because the legislature has sought to penalize a person who sells adulterated food by his agent it cannot be assumed that it
was intended to penalize only those who may act through their agents. If the owner of a shop in which adulterated food is sold is without proof of
''mens rea'' liable to be punished for sale of adulterated food we fail to appreciate why an agent or servant of the owner is not liable to be punished
for the contravention of the same prohibition unless he is shown to have guilty knowledge.
42. The pronouncement by the Supreme Court laying down a very subtle principle of law should be very carefully appreciated and considered by
the learned Magistrate while framing charge for the alleged contravention of Paragraph 3 of the Cement (Quality and Control) Order, 1962 alleged
by the two accused persons or either them punishable u/s 7(1)(a)(ii) of the Essential Commodities Act, 1955.
43. Mr. Banerjee appearing for Agya Ram submitted in the Revision Case No. 804/67 referring to the decision in the case of (7) Nathulal Vs.
State of Madhya Pradesh, that ""mens rea"" should constitute an integral part of an offence under the Essential Commodities Act and the order made
thereunder, and that, a person could commit an offence u/s 7 of the Act if and when he ''intentionally or knowingly'' contravened any order made
u/s 3 of the Act. In that context, he drew our attention to paragraph 3 of the Cement (Quality and Control) Order, 1962, as well as to Section 7(1)
(a)(ii) of the Essential Commodities Act, 1955 and submitted that neither in paragraph 3 of the Order nor in Section 7(1) of the Essential
Commodities Act, the word ''intentionally'' or ''knowingly'' indicates mens rea in the offence appeared and that by necessary implication guilty mind
i.e. mens rea, would be excluded from the provisions of Section 7(1)(a)(ii) of the Essential Commodities Act read with paragraph 3 of the Cement
(Quality and Control) Order, 1962. Accordingly, it has been submitted that there could be no framing of charge against Agya Ram as well as
against Sheo Sankar for alleged violation of paragraph 3 of the Cement (Quality and Control) Order, 1962 read with Section 7(1)(a)(ii) of the
Essential Commodities Act. We could not accept Mr. Banerjee''s contention to be sound in law. In (7) Nathulal Vs. State of Madhya Pradesh, ,
their Lordships of the Supreme Court very succinctly expressed themselves at page 43 of the report. What the Supreme Court held was not that
as the words ''intentionally'' and ''knowingly'' had not been set forth either in the order infringed or in Section 7 of the Essential Commodities Act,
there could be no offence for violation of the order punishable u/s 7 of the Essential Commodities Act. Taking the provisions of law as in the Order
and in the Section that came for consideration before the Supreme Court, the Supreme Court at page 45 of the report amongst other things,
observed: -
The nature of the mens rea that would be implied in a statute creating an offence, depends on the object of the Act and the provisions thereof.
44. The observation of the Supreme Court quoted above the indicates that in Section 7 of the Essential Commodities Act and in the Order
considered by the Supreme Court in the reported case, the mens rea, was implied in the alleged contravention of the order punishable u/s 7 of the
Essential Commodities Act. Their Lordships then discussed the facts of the case: The Appellant was a dealer in food grains. u/s 3 of the Order no
person shall carry on business as a dealer except under and in accordance with the terms of a licence issued in this behalf by the licencing authority.
Under Sub-section (2) of Section 3 of the Order, if a person stores any food grains in a quantity of 100 mds. or more at any one time, shall, unless
the contrary is proved, be deemed to store foodgrains for the purpose of sale. Mathulal, the Appellant, in pursuanjce of that order made an
application for a licence on 30th September, 1960 to the Licensing authority in the prescribed form and deposited requisite licence fee. There was
no intimation to him that his application was rejected. He was purchasing foodgrains from time to time and sending returns to the Licensing
authority showing the grains purchased by him. He did not sell any grains purchased by him. On December 2, 1961 when the Inspector of Food
and Supplies checked the godown of Mathulal he stored 885 mds. 2 � srs. of wheat for sale. The said storage of the foodgrains would be valid
if he had a licence. In that context at page 43 of the report, their Lordships observed:
It follows, that the accused stored the grains under the bona fide impression that the licence in regard to which he had made an application was
issued to him. The fact that the licensing authority did not communicate to him the rejection of his application confirmed the accused''s belief. On
that belief he proceeded to store the food grains by sending the relevant returns to the authority concerned. It was, therefore, a storage of
foodgrains within the prescribed limits under a bona fide belief that he could legally do so. He did not, therefore, intentionally contravene the
provisions of Section 7 of the Act or those of the Order made u/s 3 of the Act.
45. On the facts of the case their Lordships of the Supreme Court laid down that in the act complained of for the violation of a particular order
passed u/s 3 of the Essential Commodities Act, punishable u/s 7 of the said Act, the offender''s mens rea in the act being either intentional or with
knowledge is not excluded but implied. In Nathulal''s case their Lordships observed that the act complained of against Nathulal in the
circumstances of the case was not intentional, and had bee committed on a bona fide belief that he was a licence holder though in fact he was not.
Even though there is neither the word ''intention'' or ''knowledge'' interest he act prohibited under paragraph 3 of the Cement (Quality and Control)
Order, 1962 or u/s 7 of the Essential Commodities Act, punishing the contravention of the provisions of paragraph 3 of the Cement (Quality and
Control) Order, 1962, the prosecution is required to establish upon cogent evidence whether the contravention of paragraph 3 of the Cement
(Quality and Control) Order, 1962 punishable u/s 7 of the Essential Commodities Act was either intentional or with knowledge implied in the act
prohibited under paragraph 3 of the Cement (Quality and Control) Order, 1962 and punishable u/s 7 (1)(a)(ii) of the Essential Commodities Act
respectively. As we understood the Supreme Court decision in Nathulal''s case is that it is not the law that for the absence of the word ''intentional''
or ''with knowledge'' either in Section 7 of the Essential Commodities Act or in any order passed u/s 3 of the Essential Commodities Act for the
contravention of which the offender is punishable u/s 7 of the Act, the offender would not be liable to be charged and punished as provided for by
the law. In the Act, the contravention of which is prohibited by an order such as the Cement (Quality and Control) Order, 1962 passed u/s 3 of
the Essential Commodities Act and made punishable u/s 7(1)(a)(ii) of the Act, there is in the Act prohibited and made punishable the implied mens
rea either in the intention in doing the act or in the knowledge in doing the act prohibited by the order in question. So, in a charge framed for
contravention of paragraph 3 of the Cement (Quality and Control) Order, 1962, punishable u/s 7(1)(a)(ii) of the Essential Commodities Act
knowledge of the offender in the prohibited act complained of should be read as implied and to find proof of such act done with knowledge
contravening the order punishable u/s 7(1)(a)(ii) of the act, the learned Magistrate shall have to consider upon the totality of the evidence whether
the offence alleged i.e. the prohibited act had been knowingly committed by either or both the accused charged. On the charge as framed, in
Nathulal''s case, their Lordships of the Supreme Court after assaying the facts of the case proved held that Nathulal contravened the Foodgrains
Control Order punishable u/s 7 of the Essential Commodities Act ''not intentionally'' but upon a bona fide belief that he was a licence-holder
though, in fact, he was not, in the peculiar circumstances of the case. Accordingly the submission of Mr. Banerjee, as we held, would be against
the tenor of law established by the Supreme Court decision in Nathulal''s case. Therefore, the absence of the word ''intention'' or ''knowledge''
either in Section 7 of the Essential Commodities Act or in paragraph 3 of the Cement (Quality and Control) Order, 1962 would not affect the
legality of the charge if framed against both the accused or either of them upon materials to be considered by the learned Magistrate. At the trial of
the charge however u/s 7(1)(a)(ii) of the Essential Commodities Act read with paragraph 3 of the Cement (Quality and Control) Order, 1962
against either or both the accused, the learned Magistrate shall have to consider on the totality of the facts proved whether the act complained of
and charged was done with the knowledge establishing mens rea in the offence charged. In the explanation in paragraph 2 of the Cement (Quality
and Control) Order, 1968 we find the following terms:
Cement shall not be deemed to be of prescribed standard if it is not of the nature, substance or quality which it purports or it represents to be.
46. The combined effect of paragraph 3 of the Cement (Quality and Control) Order, 1962 already quoted and the explanation in paragraph 2 of
that Order read with Section 7(1)(a)(ii) of the Essential Commodities Act, would be that when a person purports to sell cement to be of
prescribed standard or sells cement representing it to be of prescribed standard, but such cement is not of the nature, substance and quality of the
prescribed standard which was purported to be so when sold, or represented to be so when sold, the offender would be punishable u/s 7(1)(a)(ii)
of the Essential Commodities Act. Therefore, the question will arise whether while purporting to sell the cement of prescribed standard the seller
knew that he was selling cement which was not of the nature, substance or quality of the prescribed standard as defined in paragraph 2(b)(i) of the
Order, or whether the seller at the time of selling the cement representing it to be of prescribed standard as defined in the paragraph mentioned
above, knew that the cement was not of the nature, substance or quality of the ""prescribed standard"". So, after framing the charge against both or
either of the accused as the learned Magistrate would think proper, for an offence punishable u/s 7 (1) (a) (ii) of the Essential Commodities Act
read with paragraph 3 of the Cement (Quality and Control) Order, 1962 he shall have to consider and find upon evidence adduced by the
prosecution whether the offence complained of and charged was knowingly committed by the offender or offenders within the scope of paragraph
3 of the Order punishable u/s 7(1)(a)(ii) of the Essential Commodities Act in the manner just explained above. If the implied mens rea in the
offence charged according to the learned Magistrate''s appreciation of the evidence is not proved beyond reasonable doubt as against the offender
or offenders charged, the learned Magistrate shall pass necessary orders acquitting the offender or offenders concerned. We cannot, therefore, for
the reasons recorded uphold the contention of Mr. Banerjee, the learned Advocate for Agya Ram in the manner he has put forward before us. The
order discharging Agya Ram in the Revision Case No. 804/67 passed by the learned Magistrate on 23.3.66, has been wholly illegal and without
jurisdiction and must be and hereby set aside. In the Revision Case No. 803/66, the trial held and the conviction and sentence recorded and
passed have been illegal without jurisdiction and must be and are hereby set aside. Both Agya Ram and Sheo Sankar should be re-arrested and
enlarged on bail to the satisfaction of the learned Magistrate if and when applied for before him. The learned Magistrate shall, before framing the
charge for an offence either u/s 7(1)(a)(ii) of the Essential Commodities Act read with paragraph 3 of the Cement (Quality and Control) Order,
1962 or u/s 420 of the Indian Penal Code or under both, call upon the prosecution to produce the laboratory sheets containing the data relating to
the analysis of the allegedly offending cement by the Chemical Examiner. If and when such laboratory sheets are produced before the learned
Magistrate, he shall consider such laboratory sheets along with the Chemical Examiner''s report and shall decide whether or not on the materials so
placed before him, a charge u/s 7(1)(a)(ii) of the Essential Commodities Act for the alleged contravention of the paragraph 3 of the Cement
(Quality and Control) Order, 1962 and/or for an offence punishable u/s 420 of the Indian Penal Code could be legally framed against both Agya
Ram and Sheo Sankar or against either of them, bearing in mind particularly the relevant portions of our directions hereinbefore given in this
judgment relating to the frame and contents of the charge for the alleged contravention of the Order by both or either of the accused persons
punishable u/s 7(1)(a)(ii) of the Essential Commodities Act read with paragraph 3 of the Cement (Quality and Control) Order, 1962. If the learned
Magistrate considers on material placed before him that a charge against both or either of the accused for offence or offences as disclosed in the
materials placed before him can legally be framed he would frame such charge or charges against both or either of the offenders and shall proceed
to trial. If, on the materials placed before the learned Magistrate no charge can legally be framed under either of those two Sections against both or
either of the accused the learned Magistrate shall then pass orders according to law. The record of the case be dispatched as expeditiously as
possible, to the learned District Magistrate, Howrah for nominating a competent Magistrate for disposal of the case according to law in the light of
the directions given in this judgment. The Rule in case No. 803/67 for enhancement of sentence is consequently discharged.
Amaresh Roy, J.
47. I agree that the Rule in Criminal Revision Case No. 803 of 1967 should be made absolute by setting aside the conviction and sentence passed
against Sheo Sankar and the case should be sent back for retrial. I also agree that the Rule for enhancement of sentence issued against Sheo
Sankar should be discharged for the reason that the case is being sent back for retrial.
48. I also agree that the order discharging Agya Ram u/s 252(2) Code of Criminal Procedure is wholly erroneous and improper and should be set
aside for the reason that the Magistrate has not performed his duty enjoined by Sub-sections (2) and (3) of Section 251A Code of Criminal
Procedure properly and legally. For that reason the Rule in Criminal Revision Case No. 804 of 1967 issued suo moto against Agya Ram Garg to
show cause why the order of discharge dated 23rd March, 1966, passed by the learned Magistrate should not be set aside and such other or
further order passed as the Court deems fit should be made absolute and the said Agya Ram Garg should also be tried in the same case with Sheo
Sankar from the stage directed in the judgment just delivered by my Lord.
49. These three Rules arose from an Order passed by a 1st Class Magistrate at Howrah, Shri M. Rahman in C.S.G.R. case No. 30 of 1964
which was a case of alleged offences u/s 7 of Act X of 1955 and Section 420 of the Indian Penal Code. Charge sheet was submitted before the
learned Magistrate on 3rd of June, 1965.
50. Prosecution allegation was that Sm. Latika Banerjee (P.W. 1) had purchased 40 bags of cement on 17th January, 1964, from Agya Ram
Garg, a licensed cement dealer by paying the price of Rs. 315.46 P. That cement was not of the standard prescribed by law as was represented to
the said purchaser Sm. Latika Banerjee, and it was adulterated. She sent a letter of complaint to the Superintendent of Police Enforcement Branch,
West Bengal, on 31st of January, 1964. A First Information Report, was recorded on 1st of February, 1964, and upon investigation a charge-
sheet alleging offences u/s 7 of Act X of 1955 and u/s 420 of the Indian Penal Code, against both Agya Ram Garg and Sheo Sankar was
submitted on 3rd of June, 1965. On that date Sheo Sankar was on police bail and Agya Ram Garg was reported to be absconding. On 11th June,
1965, Sheo Sankar appeared before the Magistrate and was released on bail. Agya Ram Garg appeared before the Magistrate on 13.8.65 and
was released on bail. On 3rd March, 1966, the learned Magistrate Shri M. Rahman, to whom the case had been transferred for disposal,
explained to the accused in a Summary Procedure ""Charge u/s 7(ii) Act X/55"" to which accused pleaded not guilty and claimed to be tried. In that
Order the learned Magistrate then observed ""There is no element to consider any charge u/s 420 I.P.C. against the accused which has also been
admitted by the C.S.I. Elements against accused Agya Ram Garg is also wanting and he is discharged u/s 251A(2) Code of Criminal Procedure
51. The learned Magistrate adopted a summary procedure obviously following the provision in Section 12A of Act X of 1955, but he has not said,
either in the order-sheet, or in the judgment that he has been specially authorized under that Section.
52. At the trial prosecution examined witnesses and produced evidence to prove that the Firm from which cement had been purchased by Sm.
Latika Banerjee was a licensed dealer and that 40 bags of cement were purchased under a permit (Ext. 4) by paying cash price of Rs. 315.46 P.
Prosecution also produced in evidence the Chemical Examiner''s Report which said that the cement seized from P.W. 2 who purchased on behalf
of Sm. Latika Banerjee was found to be adulterated after due analysis in the laboratory of the samples which were sent to the Chemical Examiner
during investigation.
53. Defence of Sheo Sankar at the trial was that the Firm had purchased the cement from some retail dealer and he had no knowledge that the
cement was adulterated. It was also contended that the Chemical Examiner''s Report did not show that the sample examined was not in conformity
with the prescribed standard as defined in Section 2(b) of Cement (Quality and Control) Order, 1962.
54. The learned Magistrate accepted the truth of the prosecution evidence on the points that the accused Firm was a licensed dealer in cement and
the 40 bags of Cement seized during investigation was sold from the shop. He also found that the cement in question was mixed up with some
foreign article in the firm of the accused before the same was delivered to the complainant, although other stocks found in the godown of the
accused were found to be in conformity with the prescribed quality sold in the market. He recorded a finding in these terms:
I am thus convinced that some fine processed earth which almost resemble ordinary cement, popularly known as ""Ganga Mati"" must have been
mixed up with the original cement in the godown of the accused before the same was delivered to P.W. 2 and the other stock was kept intact for
fear of being detected by the lawful authority"".
55. The learned Magistrate over ruled the point raised on behalf of the defence that the mason who first doubted the quality of the cement was not
examined by prosecution and a presumption should be raised for non-production of the mason, and then recorded his finding in these words:
To my mind circumstances are so strong that there is no difficulty in arriving at the irresistible conclusion that the accused has committed an offence
under Cement (Quality and Control) Order by violating Clause 3 of the Order and should be held guilty u/s 7(ii)/X/55.
On that finding Sheo Sankar was convicted. In awarding the sentence the learned Magistrate said:
Accused Sheo Sankar Singh is convicted u/s 7 (ii) X/55 and considering the serious nature of offence committed by him, he is sentenced to T.R.C.
and also to pay a fine of Rs. 2,000/- (Two thousand) in default to R.I. for two months u/s 251A(12) Code of Criminal Procedure Fine if realized
Rs. 500/- (five hundred) should be paid P.W. 1 or her husband P.W. 2 as compensation.
Alamats are to be destroyed.
56. Against that order of conviction and sentence Sheo Sankar Singh moved this Court for Revision. On that application Rule was issued upon the
District Magistrate, Howrah, to show cause why the order complained of should not be set aside. That gave rise to Criminal Revision No. 803 of
1967. A Rule for enhancement of sentence passed against Sheo Sankar was also issued and that Rule was heard along with Criminal Revision No.
803 of 1967.
57. Another Rule was issued upon the District Magistrate, Howrah, and Agya Ram Garg to show cause why the Order dated 23rd March, 1966
discharging Agya Ram Garg should not be set aside. That Rule gave rise to Criminal Revision No. 804 of 1967. All the three Rules arising from the
same trial have been heard together.
58. Regarding two Rules that concern Sheo Sankar Singh four points have arisen. First, whether the framing of a charge for an offence u/s 7 of Act
X of 1966 and also non-framing of the charge u/s 420 I.P.C. was properly and legally made. The second is whether Sheo Sankar who acted only
as an agent of Agya Ram Garg could be fixed with any ''mens rea'' and convicted of an offence u/s 7 of Act X of 1955. The third is whether the
evidence provided by Chemical Examiner''s Report in this case saying that cement was adulterated was sufficient evidence for holding that the
cement was not of prescribed standard as defined in Section 2(b) of the Cement (Quality and Control) Order, 1962, for constituting an offence of
violation of Section 3 of that O.
59. The other point which is the subject-matter of the Rule for enhancement of sentence is whether detention till rising of the Court is a legal
sentence and imprisonment which is a compulsory sentence for an offence u/s 7 of Act X of 1955.
60. Only point in Criminal Revisional No. 804 of 1967 in which Agya Ram Garg is concerned, is whether the Order discharging Agya Ram Garg
has been a proper and legal order. This point, as I have said above, also concerns Sheo Sankar in so far as by the same Order dated 23rd March,
1966 the learned Magistrate did not frame a charge for an offence u/s 420 I.P.C. against Sheo Sankar and in respect of that alleged offence he has
been pro tanto discharged.
61. This last point has been dealt with by my Lord in his elaborate judgment. I agree that the Order made on 23rd March, 1966, though made on
a concession made by the officer who conducted the prosecution before the learned Magistrate was not a proper and correct Order at all. The
allegations made and the materials before the learned Magistrate at that stage were sufficient to establish a prima facie case and provided ground
for presuming that both Agya Ram Garg and Sheo Sankar Singh had committed offences u/s 7 of Act X of 1955 by violation of Section 3 of
Cement (Quality and Control) Order, 1962, and also u/s 420 of Indian Penal Code which were offences triable as warrant case under Chapter
XXI Code of Criminal Procedure and the learned Magistrate who was a First Class Magistrate was competent to try it. The learned Magistrate
has failed to apply his mind to the materials that fell for consideration at that stage and has been misled to fall into an error by the improper
concession made by the police officer conducting the prosecution. The materials being enough for an opinion that there is ground for presuming that
the accused persons have committed those offences, it was the legal duty of the learned Magistrate to frame proper charges under Sub-section (3)
of Section 251A Code of Criminal Procedure Though it was a Warrant Case, if the Magistrate was specially empowered u/s 12A of Essential
Commodities Act, 1955, he need have to try the Case by following Summary Procedure.
62. Looking to the particular manner in which the order dated 23.3.66 has been passed by the learned Magistrate and also the peculiarities that
loudly appear on the Original Order Sheet, a question may arise if in a Summary Trial the stage of Sub-sections (1) and (2) of Section 251A had
been passed in the case when the accusation regarding the offences against both accused persons then before the Magistrate were explained and
the State of Sub-section (3) of Section 251A was reached tantamounting to framing of the charges against both the accused persons. If so order of
discharge after that stage was not only illegal but also without jurisdiction.
63. I do not express any opinion on that question because in the present case I do not feel the necessity to decide on that fine question of law. The
order discharging Agya Ram under Sub-section (2) of Section 251A Code of Criminal Procedure is loudly improper and illegal for the reason that
the learned Magistrate has not devoted any consideration to the material that were before him at that stage, but he acted on a concession made on
behalf of prosecution for which we do not find any reason or jurisdiction at all.
64. The Original Order Sheet of the Magistrate shows alterations, about which it is unnecessary for me to enter into an elaborate discussion
because I agree generally with the reasons that my Lord has discussed threadbare in his judgment just now pronounced. It need however be
pointed out that in framing the charge against Sheo Sankar the learned Magistrate contented himself by saying in that Order dated 23rd March,
1966 and also in the summary sheet and also in the judgment of conviction that the offence was ""u/s 7(ii)/X/5"".
65. The contents of Section 7 of Act X of 1955 make meticulous distinction in the matters of punishment regarding different categories of offences.
The distinction is not only between Clauses (i) and (ii) of Section 7(i) (a) but also appears very loudly between other clauses in Sub-section (i) and
Sub-section (2) of Section 7.
66. An order framing a charge in a criminal trial and also in the Records of the trial the judgment and order of conviction at the conclusion of the
trial are very formal documents of great importance which form parts of the Court Records. Abbreviations in such formal business of the Court are
improper always, more so when the extent of the abbreviation leaves unsaid the particularly on which relevant law provides emphasis. Omissions
brought in by such abbreviations lead to ambiguity and conclusion on points which are essentially required to be stated for proper and legal
performance of duties by the Magistrate in the matter of quantum of sentence. The charge on which Sheo Sankar was tried was obviously a charge
for an offence u/s 7(1)(a)(ii) of Act X of 1955. the learned Magistrate by his craze for abbreviation has left out Sub-Section 1(a). That was utterly
improper for him to do.
67. For an offence u/s 7(1)(a)(ii) punishment provided is one of imprisonment which may extend to three years'' rigorous imprisonment and also a
fine. The learned Presidency Magistrate has not awarded any imprisonment upon conviction on an offence under that Section. But he has awarded
a sentence which he has put as ""T.R.C."" and also to pay a fine of Rs. 2,000/- (Two thousand) in default to R.I. for two months.
68. That raises a new point for our decision and it is important one. Question arises whether a sentence of detention till rising of the Court is a
sentence of imprisonment or a legal sentence at all. My Lord in his elaborate judgment has given reasons upon consideration of all aspects for
holding that -
(1) detention till rising of the Court is unknown in law;
(2) it is not a sentence of imprisonment.
(3) by making an Order awarding such a sentence the learned Magistrate violated distinct provisions in Criminal Procedure Code, Indian Penal
Code and Prisons Act and also Rules made in Jail Code under the provisions of Prisons Act.
69. I fully agree with that view and I need not repeat what has fallen from my Lord, except pointing out that Section 53 and Section 60 of the
Indian Penal Code clearly lay down that a sentence of imprisonment is of two descriptions:
(1) rigorous, that is with hard labour, and
(2) Simple, and it may be wholly rigorous or wholly simple or rigorous in any part and the rest simple.
Section 32 of the Code of Criminal Procedure authorities Courts of Magistrates to pass the following sentences:
(a) Courts of Presidency Magistrate and of Imprisonment for a term not exceeding two
Magistrates of the first class years, including such solitary confinement
as is authorized by law. Fine not exceeding
two thousand rupees.
(b) Courts of Magistrates of the Imprisonment for a term not exceeding six
second class months, including such solitary confinement
as is authorized by law.
Fine not exceeding five hundred rupees.
(c) Courts of Magistrates of the Imprisonment for a term not exceeding one
third class month. Fine not exceeding one hundred
rupees.
(2) The Court of any Magistrate may pass any lawful sentence, combining any of the sentences which it is authorized by law to pass.
70. Magistrates are authorized to pass only those sentences and no other. No Magistrate can create a new kind of punishment unknown to law.
Detention till the rising of the Court does not come within and cannot fit with any of these well known provisions of law. The operational difficulties
in obeying the mandatory provisions of Sections 383 and 384 Code of Criminal Procedure obvious if an order of detention till rising of the Court is
take to be a sentence of imprisonment. Section 541 Code of Criminal Procedure lays down the place where a person imprisoned shall be
confined. Relevant part of that Section is in these terms:
Section 541
(1) Unless when otherwise provided by any law for time being in force, the State Government may direct in what place any person liable to be
imprisoned or committed to custody under this Code shall be signified.
(2) If any person liable to be imprisoned or committed to custody under this Code is in confinement in a civil jail, the Court or Magistrate ordering
the imprisonment or committal may direct that the person be removed to criminal jail.
Prisons Act, 1894 defines prison in these terms:
(1) ''prison'' means any jail or place used permanently or temporarily under the general or special orders of a State Government for the detention of
prisons, and includes all lands and buildings, appurtenant thereto, but not include
(a) any place for the confinement of prisoners who are exclusively in the custody of the police;
(b) any place specially appointed by the State Government u/s 541 of the Code of Criminal Procedure, 1882 (10 of 1882) or
(c) any place which has been declared by the State Government by general or special order, to be a subsidiary jail;
71. Court of Magistrates like any other Court must be an open Court and such Court premises or Court rooms are not prisons and have not been
appointed by the State Government u/s 541 Code of Criminal Procedure as Criminal Jail where a person ordered to be imprisoned can be
confined. We shall not encourage that now or in future. The view we have taken is supported by a decision of the Lahore High Court reported in
AIR 1931 476 (Lahore) . Recently the same view has been taken in a decision taken by the Andhra High Court in the case of (1) Boddepalli
Lakshminarayana Vs. Suvvari Sanyasi Appa Rao and Others, . In that judgment Sanjeva Rao Naidu, J. has observed:
Apart from the fact that the sentence is unjustifiably lenient sentence of imprisonment till the rising of the Court is unknown to law for sentence of
imprisonment involves suffering of it outside the custody of the Court . . . . . Sentence of imprisonment till the rising of the Court is incapable of
execution as provided by the Section of the Code of Criminal Procedure and does not therefore amount to suffering of imprisonment within the
meaning of the Code.
In the Madras High Court in earlier decisions - one reported in (8) (Assan Musaliarakath) Kunhi Bava Vs. Emperor, - also supported the same
view. But in a later decision of that High Court reported in (2) In Re: Muthu Nadar, . . . a contrary view has been taken. In that case a Division
Bench of Madras High Court disagreeing with the earlier Single Bench decision, I have mentioned above, observed:
72. ""The validity of sentence of imprisonment till the rising of the Court"" is recognised in Criminal Rules and Practice framed by this Court
Paragraph 1 of Rule 102 says:
The Government consider the awarding of short term imprisonment as undesirable and Magistrate, before passing such sentences, should consider
whether imprisonments till the rising of the Court allowed by law could not appropriately be passed instead, or the provision of Section 562 Code
of Criminal Procedure applied in favour of accused persons.
That statement contained in paragraph 1 of Rule 102 of the Criminal Rules of the Madras High Court appears to be the only reason for the view
that detention till rising of the Court is recognised by law. It does not appear that the Sections of Code of Criminal Procedure and of the Indian
Penal Code to which I have made reference above were considered by Their Lordships of the Madras High Court. There is no provision in the
Criminal Rules and Orders framed by this High Court to provide us any reason analogous to the reason that prevailed in the judgment of the
Madras High Court reported in (2) AIR 1945 Mad 313. So I am unable to accept either the reason or the correctness of that view at the teeth of
the provisions in law I have mentioned above.
73. In our High Court in a decision reported in (5) 53 CWN 106 , a Division Bench (Roxburgh and Blank, JJ. observed:
We should here point out that the learned Magistrate apparently was under the impression that rigorous imprisonment for one day and detention till
the rising of the Court were different punishments and there has been some trouble in the lower Court because the learned Magistrate wished to
insist on sending the accused to jail. We should point out that in the case of imprisonment for one day, as the day on which the sentence is passed,
counts as one day, the accused could not be detained in jail on a warrant issued for such a period. In other words, there should be no further
trouble on this point. The accused must be taken to have suffered this imprisonment.
74. That passage dos not lay down that detention till rising of the Court is same as rigorous imprisonment for one day, but only resolved a difficulty
that arose in that particular case. That difficulty was obviously arising from Sections 383 and 384, Code of Criminal Procedure it was resolved by
directing that the accused in that case be taken to have suffered imprisonment. In doing so the learned Judges pointed out the difficulty that would
arise in the matter of warrant of custody that need be issued under Sections 383 and 384 Code of Criminal Procedure Their Lordships considered
those provisions of law only to point out the difficulty that arose in that case. Neither the other provisions to which I have made reference were
considered by their Lordships in that case nor was the point of law decided provisions of law in Section 510 I.P.C. that directly contemplates
imprisonment for 24 hours and the Rule in the Jail Code that applies in such a case were not placed before Their Lordships in that case. That
Division Bench judgment is, therefore, not an authority on the point we are now considering, though one aspect of it was very much in the minds of
the learned Judges. Had it been so, we would have felt compelled to make a reference to the Full Bench for a decision on this important question
of law. I am firmly of the view that law in India does not authorize any Court to detain a person in Court by way of punishment upon conviction for
any criminal offence and detention till rising of the Court is unknown to our law. It is not a sentence of imprisonment at all and is not within the
jurisdiction of the Magistrate to order.
75. For that reason I hold that the sentence awarded by the learned Magistrate on Sheo Sankar in this case is an illegal sentence and has violated
the clear provisions of Section 7 (1) (a) (ii) of Act X of 1955. That order must therefore be set aside.
76. There is another matter in that Order to which our attention has been drawn. It is the order awarding compensation out of the fine imposed.
The learned Magistrate has directed that Rs. 500/- (five hundred) out of the fine if realized, should be paid to P.W. 1 or to her husband (P.W. 2)
as compensation. In that alternative form the Order is a loud impropriety and illegality also. We have noticed in many other cases such
compensations were awarded by Magistrate in indefinite terms to be paid to ""heirs of the deceased person"". That is not authorized by Section 545
Code of Criminal Procedure for the reasons that my Lord has discussed in his judgment. We wish to impress upon all the subordinate courts
including Appellate Courts where such indefinite orders passed by Magistrates are often affirmed, that such indefiniteness in the matter of awarding
compensation not only violates law but also opens a wide door for malpractices consciously or unconsciously. Whatever that may be, this practice
must cease. Any further instance that may be brought to our notice should be most sternly dealt with because it bespeaks of not only callousness in
the judicial function of the Magistrate, but also reflects on his efficiency. That is also a reason for setting aside the order that has been made by the
learned Magistrate convicting the accused Sheo Sankar awarding an illegal sentence and making an illegal order of compensation.
77. As we are sending the case back to the Court of the Magistrate for retrial, I do not express any opinion on the question whether ''mens rea'' is
an element necessary to establish for bringing home the charge that may be framed in the case or whether materials in evidence will show ''mens
rea'' for the alleged learned discourses on that point which were addressed to us by Mr. Nalin Chandra Banerjee who appeared for Agya Ram
and by Mr. Chintaharan Roy who appeared for Sheo Sankar.
78. It will be the onus of the prosecution to bring materials before the Court and to adduce evidence for establishing all necessary elements of
offence or offences that may be charged against the accused persons. It will be the duty of the Magistrate to consider all the evidence that may be
produced before him to arrive at his own decision whether elements of offences have been established against either or both of the accused
beyond reasonable doubt.
79. For the reasons above mentioned, I agree that the Rule in Rev. Case No. 803 of 1967 should be made absolute by setting aside the order of
conviction and sentence passed against Sheo Sankar and sending the case back to the Magistrate''s Court for framing charges and trying the case
according to law in the light of the observations made and directions given by my Lord in his judgment. The Rule for enhancement of sentence
passed against Sheo Sankar is consequently discharged.
80. I also agree that the order dated 23.3.66 discharging Agya Ram Garg should be set aside and the Rule in Rev. Case No. 804 of 1967 made
absolute. The case against Agya Ram also shall be proceeded with in the same trial with the other accused Sheo Sankar for framing charges and
trying the case according to law in the light of observations made and directions given by my Lord in his judgment.
81. It should be clearly understood that the Magistrate who will deal with the proceedings shall not be influenced or bound by any observation on
facts that we may have made for discussing the points of law decided in the case and nothing in our judgment shall curtail or hamper the Magistrate
in exercising his discretion and arriving at findings on merits of the case.