Angshu Mallick & Ors vs State Of Madhya Pradesh

The applicants have preferred this petition under Section 482 of the Cr.P.C. being aggrieved by the order dated 24/03/2018 passed in Criminal

Revision No. 64/2017 by IIIrd Additional Sessions Judge, Neemuch, whereby order dated 26/08/2017 passed by the Judicial Magistrate First Class,

Neemuch in Criminal Complaint Case No. 495/2015 has been affirmed, by which the application filed by the applicants under Section 259 of the

Cr.P.C. has been rejected.

The brief facts of the case are that the applicant No.1 is an occupier of the factory Adani Willmar Limited and engaged inter alia in the operation

relating to the manufacture of oil, De-oiled cake etc. The aforesaid factory is situated at village Bhatkheda, District-Neemuch; in which the applicant

No.2 is working as Factory Manager . On 09/4/2015, 10/04/2015 and 11/04/2015 Factory Inspector Mr. H.D. Saxena inspected the factory premises

and informed that the 5 workers were died due to the violation of Section 7-A and 36 of the Act read with Rule 73 and Article 4 and 19 of Schedule

XI part XI of Rule 107 of the M.P. Factories Rules punishable under Section 92 of the said Act. On 11/05/2015 the respondent filed the complaint

before the Judicial Magistrate First Class against the applicants therein alleging violation of said rules and provisions. Factories Rules punishable under

Section 92 of the said Act. On that basis the Magistrate has taken the cognizance against the applicant and issued summons to them on 11/05/2015.

On 20/06/2017, the applicants filed an application under Section 259 of the Cr.P.C. before the trial Court for conversion of the case from summons

trial into warrant trial on the premises that the applicant/accused has to prove volumonious record and witnesses, and this is not possible in summon's

case. The said application was dismissed by the Judicial Magistrate First Class, Neemuch on the ground that delay may occur due to conversion of

summons trial case into warrant trial case. Being aggrieved by the aforesaid order the revision petition was filed before the Sessions Court and this

was also dismissed on the ground that prayer made by the applicants can be considered after the trial is commenced and the case is not reached to the

stage of commencement of trial, therefore, the application filed by the applicants is premature.

Learned counsel for the applicant has draw the attention of this Court in the case of Common Cause, A Registered Society v. Union of India, 1996

(6) SCC 775, wherein the Hon'ble apex Court while dealing with the issued has held that in cases of trials of summons cases by magistrates the trial

would be considered to have commenced when the accused to appear or brought before the magistrate are asked under Section 251 whether they

plead guilty or have any defence to make. He also placed reliance in the case of Raj Kishosre Prasad v. State of Bihar (1996) 4 SCC 495; wherein it

was held that since the person is present before the Court and Court hears the parties on framing of charges, at this stage trial is said to have

commenced.

Learned counsel for the applicant submits that the approach adopted by the revisional Court is hypothetical and he has failed to consider that the

trial of summon case is commenced when the accused appear or brought before the Magistrate and he asked that whether he plead guilty or have any

defence to make. The revisional Court has wrongly concluded that the trial is not yet commenced. Therefore, he prays that the case be remitted back

to the trial Court for reconsideration of their application filed under Section 259 of the Cr.P.C. for conversion of summons trial into warrant trial.

I have heard the rival contention of the parties and perused the record.

To resolve the controversy, it appears necessary first of all to have a look on the provision of Section 259 of the Cr.P.C., which reads as under:

“ 259. Power of Court to convert summons-cases into warrant cases.When in the course of the trial of a summons-case relating to an offence

punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried

in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code

for the trial of warrant-cases and he may recall any witnesses who may have been examined.â€​

No doubt that the trial of summon cases is commenced when the accused appear or brought before the Magistrate and he asked that whether he

plead guilty or have any defence to make. However, on reading of Section 259 of the Cr.P.C., I am of the view that this exercise of jurisdiction under

Section of the 259 Cr.P.C. is not available to the Magistrate at the early stage of trial.

The very opening words of the section “ when in the course of the trial of a summons case relating to an offence punishable with imprisonment

for a term exceeding six months, it appears to the magistrate that in the interest of justice, the offence should be tried in accordance with the

procedure for the trial of warrant cases, such magistrate may proceed to re-hear the case in the manner provided by this code for the trial of warrant

cases and may recall any witness who may have been examined.â€​

The words “ during the course of trialâ€​ and “ proceeded to rehear the caseâ€​ clearly indicates that the Magistrate should be commenced the

proceedings from the start or de-novo meaning thereby that if the trial is commenced and if the Magistrate feels that in the interest of justice the

offence is tried in accordance with procedure for trial of warrant cases then he may be converted summon trial into trial of warrant cases. In the

present case the Magistrate has read over the particular of offence to the applicant/accused, however, the trial has not come to the stage, where the

Magistrate can resort the provision of this Section.

Having carefully examined the aforesaid provision and material brought on record, in the considered opinion of this Court the trial Court as well as

the appellate Court have not committed any error in rejecting the application filed by the applicants under Section 259 of the Cr.P.C. and the

intereference under Section 482 of the Cr.P.C. is not warranted. Consequently, this petition is hereby dismissed.