9911796707
TMI Blog1949 (8) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... The company has been sentenced to pay a fine of Rs. 500. Various defences were taken in the Court below. On the merits the defence was that the milk was not adulterated and in support of that, various points were raised regarding the method of examination of the milk. Having regard to the decision at which I have arrived, it would not be proper for me to consider the merits of the case. Mr. Das appearing on behalf of the company points out to me that there was no examination of the company in accordance with the provision of section 342 of the Criminal Procedure Code. He further points out that the provisions of section 242 of the Criminal Procedure Code were not also observed. On these grounds he says that the whole trial has been vitiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of these circumstances the Court was absolved from following the provisions of Sections 242 and 342 of the Criminal Procedure Code. In my opinion the Court was not so absolved. The Code provides in section 205 for the appearance of an accused by his pleader. The word 'pleader' does not necessarily mean a lawyer engaged to argue the case but it includes an agent duly empowered to answer all questions on behalf of the accused. Now, in this case it was possible for the company to be represented by somebody and indeed no other means of appearance were possible. If the company was represented by what I may term its agent, then it was the duty of the Court to follow the provisions of Sections 242 and 342 of the Criminal Procedure Code, as if s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What he has stated is as follows : "Mr. N.B. Guha appears with Mr. Calloden, Sales Manager of Express Dairy Co. Ltd., and denies the charge and says R.N. Sharma does morning duty and looks after sales at the time, etc." It is very difficult to understand what the learned Magistrate means. Was he reproducing the statement of Mr. Guha or of Mr. Calloden ? I am unable to decide this question. I find that the learned Magistrate has made no attempt to follow the Code of Criminal Procedure. He seems to be oblivious of the provisions of section 5 of the Criminal Procedure Code. There is nothing in the record to show that the offence was ever explained either to Mr. N.B. Guha or to Mr. Calloden, nor is it possible to find out who denied the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these errors are curable by invoking the aid of section 537 of the Criminal Procedure Code. In my opinion the decision of the Privy Council has not decided that these decisions of the Indian Courts are incorrect. In the case before the Judicial Committee the question involved was whether the denial of the right given to an accused person by the proviso to section 162 of the Criminal Procedure Code amounted to an illegality which vitiated the entire trial. The Judicial Committee held that failure to give the accused the benefit of the proviso to section 162 of the Code was a serious matter, but that in the particular circumstances of that case the error was curable by section 537 of the Criminal Procedure Code, inasmuch as the accused had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the error did not cause prejudice to the accused. I do not think therefore that this case is of much help to the respondent. The decisions regarding the effect of the non-observance of the provisions of Sections 242 and 342 of the Criminal Procedure Code therefore remain unshaken. I would further add that I am quite unable to appreciate how section 547 of the Criminal Procedure Code can ever apply to a case where the provisions of section 342 of the Code have not been observed. If an accused person is convicted without the observance of the provisions of section 342 of the Code it would amount to a conviction of a person without properly hearing his defence. In India the accused is not permitted to give evidence and the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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