# MAHANT KAUSHALYA DAS v. STATE OF MADRAS

- **Citation:** [1966] 1 S.C.R. 229
- **Court:** Supreme Court of India
- **Decided:** 1965-05-07
- **Bench:** A. K. Sarkar, M. Hidayatullah, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahant-kaushalya-das-v-state-of-madras-3532
- **Pages:** 6

## Headnote

Code of Criminal Procedure (Act 5 of 1898), ss. 243, 362(2)(A)-
S. 243-Whether mandatory-Violation, if vitiates trial-If overrides
s. 362(2)(A).
The appellant was arrested by the police and immediately produced
before the Presidency Magistrate, Madras on a charge under s. 4(1) (A)
of the Madras Prohibition Act on the allegation that he was in p~ession
of a certain amount of Ganja concealed in a wooden box in his premises without any permit.
The appellant pleaded guilty and upon that
pica, he was convicted by the Magistrate. The appellant preferred an
appeal to the High Court alleging, inter alia, 'that he was an illiterate person, not acquainted with English or Tamil or with any other South
Indian language and he only knew Hindi as it was spoken in
Uttar
Pradesh, that the proceedings were rushed through with undue haste,
that he did not really plead guilty to the charge and he had never understood the implications of the offence or proceedings before the Magistrate.
The High Court called for a report from 1he Presidency Magistrate who
submitted that the particulars of the offence and
the plea of guilty by
the appellant were explained to the appellant by an interpreter-the
Bench Clerk who had passed examinations in Hindi, and the appellant's
allegations were false.
Thereafter the High Court dismissed th.e appeal.
In appeal by certificate, the appelant, inter alia, contended that the Magistrate did not comply with the mandatory provisions of s. 243 of the Code
of Criminal Procedure, that the appellant (had been deprived of the
substance of a fair trial, that the conviction of the appellant was legally
invalid.
HELD : The requirements of s. 243 of the Criminal Procedure Code
are mandatory in character and a violation of these provisions vitiates the
trial and renders the conviction legally invalid. The requirement of the
section is not a mere empty formality but is la matter of substance intended to secure proper administration of justice.
It is important that
the terms of the section are strictly complied with because the right of
appeal of the accused depends upon the circumstance whether he pleaded
guilty or not and it is for this reason that the legislature requires that the
exact words used by the accused in his plea of guilty should, as nearly
as possible, be recorded in his own language in order to prevent any
mistaket or misapprehension. [233 D-F]
Section 243 of th'e Code is a provision of a special character and
according to well established rule of interpretation that special provision
will take precedence and override the general provision of s. 362(2) (A)
of the Code. [234 A-Bl
The violation
of the procedure
in s. 243 .of the Code was sufficiently serious to invalidate the conviction of the accused. It wag manifest from the record that the admission of the appellant had not been
recorded "as nearly as possible in the words used by him", as required
by s. 243 of the Code. [233 F. B-C]
230
SlJPll.l!MB
COURT
REPORTS
(1966) I S.C.R.
Queen-Eniprt.'.~s v. Eru.l(udu, I.L.R. 15 ,\fad. 85, Slrailaba/a I>asee v.
A
Emperor, l.L.R. 6: ('al. 1127 and AJ11ku11di Lal v. Stale, A.LR. 1952
All. 212. approved.
C1v1L APPEi.LAT!' JURISDICTION :
Civil Appeal No. 131 of
1963.
Appeal from the judgment and order dated April 29. 1963 u
of the Madras High Court in Criminal Appeal No. 251 of 1963.
E. C. Agarwala and P. C. Agarwala, for the appellant.
A. Ranganadham Cherry and A. V. Rangam, for the respondent.
The Judgment of ll:c Court was delivered by
Ramarn·ami, .J.
1 his
appeal
"
brought
by
c .. ~rtificatc
granted under Art. 134 ( 1) ( c) of the Constitution from a judgment of the Mdr;is High Court dated April 29, 1963 in Crimic
nal Appeal
No. 251 of 1963
affirming the convictinn of the
D
appellant-Sri Mahant Kaushal ya Das under s. 4 ( 1 ) (a) of the
Madras Prohibition Act
and the sentence of one yc~r Rigorous
Imprisonment and a fine of Rs. 50 or in default
rigorous
imprisonment for one month.
The appellant is the hereditary Mahant of Sri

## Text

A
B
c
D
•
E
F
G
• I
H
MAHANT KAUSHALYA DAS
v.
STATE OF MADRAS
May 7, 1965
[A. K. SARKAR, M. HIDAYATULLAH AND V. RAMASWAMI, JJ.]
Code of Criminal Procedure (Act 5 of 1898), ss. 243, 362(2)(A)-
S. 243-Whether mandatory-Violation, if vitiates trial-If overrides
s. 362(2)(A).
The appellant was arrested by the police and immediately produced
before the Presidency Magistrate, Madras on a charge under s. 4(1) (A)
of the Madras Prohibition Act on the allegation that he was in p~ession
of a certain amount of Ganja concealed in a wooden box in his premises without any permit.
The appellant pleaded guilty and upon that
pica, he was convicted by the Magistrate. The appellant preferred an
appeal to the High Court alleging, inter alia, 'that he was an illiterate person, not acquainted with English or Tamil or with any other South
Indian language and he only knew Hindi as it was spoken in
Uttar
Pradesh, that the proceedings were rushed through with undue haste,
that he did not really plead guilty to the charge and he had never understood the implications of the offence or proceedings before the Magistrate.
The High Court called for a report from 1he Presidency Magistrate who
submitted that the particulars of the offence and
the plea of guilty by
the appellant were explained to the appellant by an interpreter-the
Bench Clerk who had passed examinations in Hindi, and the appellant's
allegations were false.
Thereafter the High Court dismissed th.e appeal.
In appeal by certificate, the appelant, inter alia, contended that the Magistrate did not comply with the mandatory provisions of s. 243 of the Code
of Criminal Procedure, that the appellant (had been deprived of the
substance of a fair trial, that the conviction of the appellant was legally
invalid.
HELD : The requirements of s. 243 of the Criminal Procedure Code
are mandatory in character and a violation of these provisions vitiates the
trial and renders the conviction legally invalid. The requirement of the
section is not a mere empty formality but is la matter of substance intended to secure proper administration of justice.
It is important that
the terms of the section are strictly complied with because the right of
appeal of the accused depends upon the circumstance whether he pleaded
guilty or not and it is for this reason that the legislature requires that the
exact words used by the accused in his plea of guilty should, as nearly
as possible, be recorded in his own language in order to prevent any
mistaket or misapprehension. [233 D-F]
Section 243 of th'e Code is a provision of a special character and
according to well established rule of interpretation that special provision
will take precedence and override the general provision of s. 362(2) (A)
of the Code. [234 A-Bl
The violation
of the procedure
in s. 243 .of the Code was sufficiently serious to invalidate the conviction of the accused. It wag manifest from the record that the admission of the appellant had not been
recorded "as nearly as possible in the words used by him", as required
by s. 243 of the Code. [233 F. B-C]
230
SlJPll.l!MB
COURT
REPORTS
(1966) I S.C.R.
Queen-Eniprt.'.~s v. Eru.l(udu, I.L.R. 15 ,\fad. 85, Slrailaba/a I>asee v.
A
Emperor, l.L.R. 6: ('al. 1127 and AJ11ku11di Lal v. Stale, A.LR. 1952
All. 212. approved.
C1v1L APPEi.LAT!' JURISDICTION :
Civil Appeal No. 131 of
1963.
Appeal from the judgment and order dated April 29. 1963 u
of the Madras High Court in Criminal Appeal No. 251 of 1963.
E. C. Agarwala and P. C. Agarwala, for the appellant.
A. Ranganadham Cherry and A. V. Rangam, for the respondent.
The Judgment of ll:c Court was delivered by
Ramarn·ami, .J.
1 his
appeal
"
brought
by
c .. ~rtificatc
granted under Art. 134 ( 1) ( c) of the Constitution from a judgment of the Mdr;is High Court dated April 29, 1963 in Crimic
nal Appeal
No. 251 of 1963
affirming the convictinn of the
D
appellant-Sri Mahant Kaushal ya Das under s. 4 ( 1 ) (a) of the
Madras Prohibition Act
and the sentence of one yc~r Rigorous
Imprisonment and a fine of Rs. 50 or in default
rigorous
imprisonment for one month.
The appellant is the hereditary Mahant of Sri Bairaghi Matam
-a Hindu Religious and Charitable
Institution of a monastic
nature.
The appellant has been residing in the Matam premises,
Elephant Gale, Madras which is a public place of worship.
On
March 22, 1963 at about I 0 a.m. the appellant was arrested by
E
the police and immediately produced before the Vlfl Presidency
Magistrate on the same day on a charge under s. 4( 1) (a) of the
I'
Madras Prohibition Act on the allegation that he was in possession of 3,960 gram.1 of Ganja concealed in a wooden box in the
Matam premises without any permit.
The appellant pleaded
guilty to the charge and upon that plea he was convicted by the
Mag'strate to rigorous imprisonment for one year and a fine
Rs. 50, in default to rigorous
imprisonment for one month.
The appellant preferred Criminal Appeal No. 251 of 1963 to
the High Court alleging that his eye-sight was very bad and defective, that he was an illiterate person,
not
acquainted with
English or Tamil or with any other South Indian language and
that he only knew Hindi as it was spoken in Uttar Pradesh. He
also complained that he had no time to consult either his lawyer
or his disciple1, that the proceedings were rushed through with
undue haste, that he did not really plead guifty to the charge and
G
II
•
•
' .
•
-
. '
KAUSHALYA DAS v. STATE (Ramaswami, !.)
231
A
that he never understood the implications of the offence or the
proceedings before the Magistrate.
The
app~llant
file~ an
affidavit in support of the appeal before the High Court m regard to these allegations. Kailasam, J. called for a report f~om
the VIII Presidency Magistrate with regard to the allegat10ns
made in the affidavit of the appellant.
On April 23, 1963 the
B Magistrate submitted a report as follows :
"The particulars of the offence were explained to
the accused by the Interpreter. It was translated to
accused in Hindi by
Sri M. Sukumara Rao,
Bench
Clerk of this Court who has passed examination in
C
Hindi. The plea of guilty by the accused was also
interpreted to the Court by Sri M. Sukumara Rao.
The allegations contained in the affidavit are false."
D
Thereafter Kailasam, J. confirmed the conviction and sentence
and dismissed the appeal.
Learned Counsel on behalf of the appellant put forward the
argument that the Magistrate did not comply with the mandatory
•
provisions of s. 243. Criminal Procedure Code, that the appellant
has been deprived of the substance of a fair trial, and that the
conviction of the appellant is legally invalid.
It was also sub-
• I
E milted on behalf of the appellant that the necessary ingredients of
the offence of possession of the contraband article under
s. 4 (1 )(a) of the Madras Prohibition Act have not been established as a matter of law.
It is necessary to reproduce, at this stage, the charge framed
F by the VIII Presidency Magistrate against the appellant as well
as the judgment pronounced in the case. The charge reads a~
follows:
G
H
"On 22nd March 1963 at about 8 a.m. at No. I
General Muthiah Mudali street in C-2 !fruits, the accused was found in possession of 3,960 grams of Ganja
concealed in wooden box in his Matam premises without any permit.
Hence the charge."
The judgment by the Magistrate reads as follows :
"Judgment, dated 22nd March 1964 :-Accused
produced. Pleads guilty. Found guilty. The quantity
is very huge viz., 3,960 grams concealed in a wooden
box. I convict and sentence him to rigorous imprisonment for one year and to pay a fine of Rs. 50 in default
~32
SUPllBl'llB COUllT REPORTS
[1966] I S.C.R
to rigorous imprisonment for one month.
Confiscate
A
property."
Section 4 of the Madras Prohibition Act, 1937 (Madras Act
JO of 1937) as amended by Madras Act 8 of 1958 states:
"4. {l) Whoever-
( a) imports, exports, transports or possesses liquor
or any intoxicating drug;• .... ••
shall
be
punished-•••••••
c ii) in any other case with imprisonment for a
term which may extend to one year and
with fine which may extend to two thousand rupees, but in the absence of special
and adequate reasons to the contrary to be
mentioned in the judgment of the Court,
such imprisonment shall not be less than
three months and such fine shall not be less
than five hundred rupees,
in the case ef
the offence of import, export or transport
of liquor or any intoxicating drug falling
under clause (a) : • .. • • • •
( 2) It shall t>e
presumed until the
contrary is
shown-
( a) that a person
accused of any
offence under
clauses (a) to (j) of sub-section (I) has committed such offence in respect of any liquor or
any intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping
of toddy or the manufacture of liquor or any
intoxicating drug or any such materials as are
ordinarily used in the tapping of toddy or the
manufacture of liquor or any intoxicating drug
or any materials which have
undergone any
process towards the manufacture of liquor or
any intoxicating drug or from which any liquor
or intoxicating drug
has been manufactured.
for the possession of which he is
unable to
account satisfactorily. and •••• •••
It cannot be disputed in the presen~ case that there has been
a violation by the Magistrate of the requirements of s. 243 of
the Criminal Procedure Code which states :
"243. If the accused admits that he has committed
the offenco of which he is accused, his admission shall
B
D
F
G
II
'·~
j
"'
A
B
c
D
E
G
KAUSHALYA DAS v. STATE (Ramaswami, J.)
233
be recorded as nearly as possible in the words used by
him; and, if he shows no sufficient cause whfhe should
not be convicted, the Magistrate may convict him accordingly."
It is stated by the Magistrate in his report that the particulars
of the offence were explained to the appellant by the Bench
Clerk Sri M. Sukumara Rao and that the plea of guilty by
tihe appellant
was
interpreted to the
Court by the
_sa~e
Bench Clerk. It is manifest from the record that the admiss10n
of the appellant has not been recorded "as nearly as possible
in the words used by him", as required by s. 243 of the Criminal
Procedure Code.
It is true that in the judgment dated March
22, 1963 the Magistrate has said that the
appellant
"pleads
guilty", but the record contains no indication whatsoever as to
what exactly the appellant admitted before the Magistrate.
In
our opinion, the requirements of s. 243 of the Criminal Procedure Code are mandatory in character and a violation of these
prov1S1ons
vitiates the trial and renders the conviction legally
invalid.
The requirement of the section is not a mere empty
formality but is a matter of substance intended to secure proper
administration of justice.
It is important that the terms of the
section are strictly complied with because the right of appeal of
the accused depends upon the circumstance whether he pleaded
guilty or not and it is for this reason that the legislature requires
that the exact words used by the accused in his plea of guilty
should, as nearly as possible, be recorded in his own language
in order to prevent any mistake or misapprehension. It has been
held by the Madras High Court in Queen-Empress v. Erugadu (1)
that the violation of the procedure in s. 243 of the Criminal Procedure Code was sufficiently serious to invalidate the conviction
of the accused. The same view has been taken by the Calcutta
High Court in Shailabala Dasee v.
Emperor(')
and by the
Allahabad High Court in
Mukandi Lal v. State('). In our
opinion, these cases correctly lay down the law on the point.
It is submitted on behalf of the respondent that under s.
362(2)(A). Criminal Procedure Code it was
sufficient if the
Magistrate made a memorandum of the substance of the examination of the accused and that it was not necessary to record the
4
actual words used by the accused. In our opinion, s. 362(2) (A)
H of the Criminal Procedure Code has no application in a case
(1) I.L.R. 15 Mad. 83.
(2) l.L.R. 62 Cal. 1127.
(3) A.LR. 1952 Allahabad 212
234
SUPIUUO! COUIT REPORTS
[1966) I S.C.R.
where the accused pleads guilty and the special provision of s.
243 of the Criminal Procedure Code would be attracted in such
a case. Section 243 of the Criminal Procedure Code is a provision of a special character and according to well-established
rule of interpretation that special provision will take precedence
and override the general provision of s. 362 (2)(A) of the
Criminal Procedure Code.
We, therefore, reject the argument
of Couse! for the respondent on this point.
For these reasons we allow this appeal, set aside the conviction and sentence imposed upon the appellant and order that the
case should go back to the VIII Presidency Magistrate, Madra~
A
ii
for being retried and brought to a conclusion in accordance with
C
law.
Appeal a/lowed.
. '
,
I
I
I.