Ranjan Kumar Mazumder, J.@mdashThe instant Criminal revisional application under Sections 401 and 482 of the Code of Criminal Procedure is
directed against the order passed by the learned Metropolitan Magistrate, 14th Court, Calcutta on March 26, 1991, in Case No. C/205 of 1979
u/s 58A(5)(b) of the Companies Act, 1956 and this is at the instance of accused-Petitioner Nos. 1, 2, 3 and 4.
2. The case of the Petitioners was in brief that in the year 1979 the Opposite Party No. 1 being Registrar of Companies, West Bengal filed a
Petitioner of complaint before the learned Chief Metropolitian Magistrate, Calcutta against the Petitioners alleging inter alia that although the
Petitioners received a sum of Rs. 12,30,000.00 as deposits during the year ending on March 31, 1977, they did not deposit the said amount within
30 days from the date of acceptance of such money and thus committed an offence punishable u/s 58A(5)(b) of the Companies Act, 1956.
Thereupon learned Chief Metropolitan Magistrate, Calcutta took cognizance of the offence and issued process against the Petitioners and finally
transferred the case to the Court of learned Metropolitan Magistrate, 14th Court, Calcutta for disposal: According to the Petitioners, since the
offence u/s 58A(5)(b) of the Companies Act was punishable with imprisonment for a term of five years and fine, the learned transferee Court ought
to have followed the procedure laid down for trial of warrant cases, but unfortunately the learned Court below while dealing with the case followed
erroneously and illegally procedure laid down by the code for the trial of summons procedure cases. According to the Petitioners they have
thereby been prejudiced and hence the order passed by the learned Court below on March 26, 1991, was liable to be quashed.
3. I have had the opportunity of hearing learned Counsels of both sides in the matter at length.
4. The only question requiring consideration was whether the learned Court below was correct in holding the trial of the instant case by following
the procedure laid down for trial of summons cases and whether the impugned order passed by the learned Court below on March 26, 1991, was
lawful.
5. At the time of hearing learned Counsel for the Petitioners Shri A. Bhattacharya vehemently submitted that since the punishment prescribed for
the offence u/s 58A(5)(b) of the Companies Act was five years imprisonment and fine, the instant case of his clients ought to have been tried by the
learned Court below following the Warrant Procedure as laid down in Chapt. XIX of the Code of Criminal Procedure. But unfortunately, he
submitted that the learned Court below followed the Summons Procedure inasmuch as the learned Court below not only took the plea of his clients
as provided for in Section 251 appearing under Chapt. XX of the Code but also recorded the evidence of one witness for the prosecution and
fixed a date for examination of the Petitioners u/s 313 Code of Criminal Procedure. According to Shri Bhattacharya his clients were thereby highly
prejudiced and since this was a case of glaring injustice and failure of justice, the instant Criminal Proceeding should be quashed including the
impugned order passed by the learned Court below on March 26, 1991.
6. Learned Counsel for the O.P. Shri Jaymalya Bagchi submitted very fairly that since the offence u/s 58A(5)(b) of the Companies Act was
punishable with imprisonment for five years and fine, the learned Court below ought to have tried the case against the Petitioners following the
Warrant Procedure laid down in Chapt. XIX of the Code.
7. Needless to mention that u/s 2(X) of the Code of Criminal Procedure, a ''Warrant Case'' means a case relating to an offence punishable with
death, imprisonment for life or imprisonment for a term exceeding two years. In the instant case, the Petitioners were facing trial for allegedly
committing an offence punishable u/s 58A(5)(b) of the Companies Act. According to that Section every officer of the Company who is in default
shall be punishable with imprisonment for a term which may extend to five years and shall also be liable to fine. In view of this explicit provision, I
fail to understand as to how the learned Court below made a wrong approach to the case and proceeded to deal with the case following the
Summons Procedure laid down under Chapt. XX of the Code.
8. The law is now well settled that when a Warrant Case is tried by the learned Magistrate as a Summons Case, it is an instance of illegality and
not a case of irregularity which is curable u/s 460 of the Code. In this context, it may be mentioned that the procedures laid down for trial of
Warrant case and Summons Case are entirely different and that the procedure prescribed for trial of a Summons Case is simpler and speedier than
that laid down for trial of a Warrant Case. To be specific, Warrant Cases deal with offences graver than those in Summons Cases. Besides an
accused facing trial held under the Warrant Procedure gets greater opportunity of defence than in a Summons Case. Hence if a Warrant Case is
tried as a Summons Case by the learned Magistrate, it gives rise to indefeasible presumption of prejudice caused to an accused.
9. It appears that in the instant case, learned Court below recorded the plea of the accused-Petitioners on January 6, 1989, as provided for in
Section 251 of the Code appearing under Chapt. XX of the Code and that thereafter recorded the evidence of one witness for prosecution on
September 6, 1989, and December 18, 1989. It also appears from the record impugned order dated March 6, 1991, that the learned Court
below even fixed a date for examination of the Petitioners u/s 313 of the Code vide order dated February 2, 1990. This order was also echoed by
the impugned order dated March 26, 1991. Thus the learned Court below followed the Summons procedure out and out while holding trial of the
instant case instead of proceeding under Chapt. XIX of the Code providing for trial of Warrant Cases. I am, therefore, of the clear view that all
such orders beginning from the date of recording plea onwards including the impugned order should be quashed. I, therefore, quash all such
orders. That being the position, I direct the learned Court below to hold denovo trial of the instant case involving the Petitioners by way of
following the procedure laid down under Chapt. XIX of the Code prescribing trial of Warrant Cases by the learned Magistrate. The criminal
revision is thus allowed and disposed of.
10. Let the lower Court records be sent down to the learned Court below immediately.
11. There will be no order as to costs.
Impugned order quashed with necessary directions.