The State vs Harbans Lal

Chopra, J.—This is a reference by the Sessions Judge, Kapurthala, for setting aside an order of the Additional District Magistrate, Kapurthala, releasing the respondent on a mere admonition u/s 562 (1-A), Criminal P.C. The respondent was in police service and had been posted as a constable on duty at Phatak Badhla on 31st January 1949. On 10th of February he was found to be in the police lines when he should have been on duty at the Phatak. On being enquired he stated, that since his other colleagues had gone on strike, he also did no longer want to remain in the service of the Department. He was challaned u/s 7 of Ordinance 3 of 1999 (An Ordinance to make provisions for the maintenance of certain Essential services.) When produced before the Additional District Magistrate, Kapurthala he confessed his guilt and pleaded guilty to the charge the Magistrate released him after due admonition as required by Section 562 (1-A), Criminal P.C. The facts that made him adopt that course were (1) that the accused had confessed his guilt and had felt sorry and tendered an apology for his actions; (2) that he was a young man and had already suffered for the relaxation from duty and (3) that the trial had remained hanging more than a year and a half. On a move by the prosecution the learned Sessions Judge has recommended the case to this Court for passing a proper sentence because Section 562 (1-A) could not be resorted to in the present case.

Shri Moti Ram, Assistant to the Advocate General, has contended that Section 662 (1-A) applied only to the offences specifically mentioned therein, or to any offence under the Indian Penal Code punishable with not more than two years'' imprisonment, and that it had no application to a case falling u/s 7 of the Ordinance referred to above. I have no hesitation to accept this contention. The offence for which the respondent was charged does not fall under the cases for which Section 562 (1-A) is meant. The respondent, therefore, could not have been released on a mere admonition. The Magistrate, if he thought fit, could no doubt, proceed under Sub-clause 1 of that section and could have released the accused on probation of good conduct. In that case he was only to direct the accused to furnish a bond, with or without sureties, to appear and receive sentence when called upon during the period to be fixed by the Court. On the facts relied upon by the trial Magistrate I am inclined to think that it was a fit case in which the Magistrate could have rightly acted under Clause 1 of Section 562.

The question now before me is as to whether I should after almost three years, interfere in the order passed by the Magistrate and call upon the respondent to undergo a sentence of imprisonment or release him on probation of good conduct by furnishing a bail bond as required by Section 562 (1). In spite of the fact that I am of the view that the order of the Magistrate was beyond his powers and must be held to be illegal, I could not like to disturb item revision. The reason is obvious; on a consideration of all the fact of the case and the time it has taken, I do not think any real injustice has resulted from the order. This Court would not always interfere in an order, which is illegal, unless it is also shown to be unjust. But it, being a Court of justice, would not hesitate to disturb even a legal order in revision if it were unjust. I do not, therefore, feel inclined to pass any other order on this reference except, expressing the view that the order of the Magistrate was illegal.

Before closing I must observe that the sad mistake committed by the A.D.M., could have easily been avoided if he had consulted the law and become sure of its application to the case. Another fact that I cannot fail to take notice of is that while recording the statement of the accused the Magistrate put to him a long all-comprehensive question which should have been divided into several distinct questions. The object of enacting Section 342, Criminal P.C., was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give. The question or questions must be framed in such a way as to enable the accused to know what he is to explain and what are the circumstances which are against him. It is always desirable that every material fact alleged by the prosecution against him should form the subject-matter of a distinct question. A general or a lengthy question comprised of all the facts relied upon by the prosecution may not be clearly understood by the accused and may result in depriving him of the opportunity of offering his explanation.

In the result the reference is declined.