RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Revision No.89 of 2000

Raghav Sharan Misra s/o Sri Teerath Raj Misra,

R/o Gram Hinrahi. Post, Kinnarpatti, Thana, Jatha,

District Kushinagar.                             …... Rvisionist/J.D.

Versus

1- Durgesh Kumar Misra s/o Sri Brij Kishore Misra

2- Brij Kishore Misra s/o Late Phulena Dutt Misra,

    R/o Gram Hinrahi. Post, Kinnarpatti,

    District Kushinagar.                     .…Opp. Parties/D.Hs.

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon’ble Sri Jugul Kishor, Member.

Sri R.K. Gupta, Advocate for the revisionist.

Date        9.12.2014

JUDGMENT

Sri A.K. Bose,  Member- Aggrieved by the order dated 30.3.2000 passed by the Ld. DCDRF, Kushi Nagar in Execution Case No.42 of 2000 arising out of Complaint Case No.954 of 1999, the Revisionist/Judgment-Debtor has preferred the instant revision on 22.7.2000 under Section 17(1)(b) of the Consumer Protection Act, 1986 (Act 68 of 1986) on the ground that the order under execution dated 30.3.2000 was passed without following the procedure or guidelines given in Revision No.41 of 2003: Ghaziabad Development Authority Vs. Sripal Dixit  and the same is bad in the eye of law and, therefore, liable to be set aside, otherwise the revisionist/JD will suffer irreparable loss.

(2)

From perusal of the records, it transpires that the impugned order was passed even without procuring the attendance of the JD and the Forum below awarded him a sentence of imprisonment for one year together with a fine of Rs.1,000.00. It has been contended that the impugned conviction order of the Forum below, acting as Judicial Magistrate, Ist Class was passed in gross violation of the procedure laid down in Cr.P.C. for summary trial of offenders in view of Sub-section (2) and (3) of Section 27 of the Act 68 of 1986. 

From perusal of the records, we are unable to gather the factual-matrix of the case as no record is available. The Forum below has not touched the factual matrix of the case before passing the impugned order of conviction.   The Ld. Counsel for the revisionist could not also throw any light on the factual matrix of the case.

From perusal of the records, it further transpires that conviction order was passed on 30.3.2000 when the revisionist/JD was in jail and he was not summoned from there. He was provided with the certified copy of the judgment on 17.7.2000 and thereafter, the revision was preferred on 22.7.2000. Thus, it was within the period of limitation.

From perusal of the order, it is clear that while passing the impugned order of conviction dated 30.3.2000, the Forum below did not follow the procedure laid down for summary trial as provided under Chapter XXI of the Cr.P.C. For the offence to be tried summarily, there is a procedure laid down under Section 262 Cr.P.C. It provides

(3)

that: Sec.262: "Procedure for summary trials. (1) In trials under this Chapter, the procedure specified in this code for the trial of summary case shall be followed except as hereinafter mentioned. (2) no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter." As per provisions laid down under sub-clause (1) above, apparently, in summary trials, the procedure specified in Cr.P.C. for the trial of summary cases shall be followed which are contained under Section 251 to 255 Cr.P.C. Apart from this, the Forum below did not take cognizance of the offence as Judicial Magistrate, First Class as provided under 190 Cr.P.C. and the attendance of the accused was not formally procured by invoking the provisions of Chapter VI of the Cr.P.C. pertaining to processes to compel the attendance of the accused. Under the provisions of law, when an accused appears or is brought before the Consumer Forum, functioning as Judicial Magistrate, Ist Class, the particulars of the offence of which he is accused of shall have to be stated to him and he shall be asked as to whether he pleads guilty or has any defence to make. If he pleads guilty, then nothing further is required to be done and an order of conviction may be passed and the accused may be sentenced to imprisonment at once. If the person/accused does not plead guilty and has any defence to make then he shall have to be heard in the light of the defence in respect to the offence alleged to have been committed by him in reference to all facts and circumstances. If, after affording

(4)

an opportunity of hearing and after considering the entire circumstances of the case, the Forum finds that the accused is not guilty, he shall be acquitted; and if he is found guilty, the Forum shall pass a sentence as provided under Section 27 of the Act. In the instant matter, the Forum below, being empowered as Judicial Magistrate, Ist Class did not follow the procedure for trial of an accused summarily as observed hereinabove. It did not even take the pain to summon the revisionist/JD from the Jail to answer the charges in connection with this case, as is clear from the operative portion of the judgment. There is no mention about the factual matrix of the case in the judgment and nothing has been observed regarding service of notice over the revisionist/JD. No finding has been given regarding non-compliance of the order dated 3.1.2000. All these remisses categorically indicate that the impugned order was passed without following the procedure established under law and as such, it cannot be allowed to sustain. Therefore, in view of the observations made by this Commission in revision No.41 of 2003: Ghaziabad Development Authority Vs. Sripal Dixit, we are of the considered view that the impugned order dated 30.3.2000 is bad in the eye of law and is liable to be quashed and the matter be referred back to the Forum below for disposal afresh in accordance with law.

ORDER

          The revision is allowed. The order dated 30.3.2000, passed by the Ld. DCDRF, Kushi Nagar in Execution Case No.42 of 2000, arising out of complaint case no.954

(5)

of 1999 is set aside. The Ld. Forum below is directed to decide the execution case afresh in the light of the observations made hereinabove. No order as to costs. Copy of this judgment be provided to the parties in accordance with the rules.

          The parties are directed to appear before the Forum below on 19.1.2015.

         (A.K. Bose)                               (Jugul Kishor)

    Presiding Member                             Member

Jafri ST G-1

Court No.5