Gujarat High Court
State Of Gujarat vs Natwar Harchandji Thakor on 22 February, 2005
Equivalent citations: 2005CRILJ2957, (2005)1GLR709
Author: D.N. Patel
Bench: D.N. Patel
JUDGMENT J.N. Bhatt, J.
Prelude (Focal Point) Let us at the very outset, evidently record, remember, and recollect that ;
"A civilisation is judged by the way it treats its criminals."
1. In this group of criminal appeals, specially assigned to the Larger Bench by the Hon'ble Chief Justice, the central theme, the core issue and the main point, in focus, has been, as to whether the trial Court, on being satisfied or in presence of special and adequate reasons peculiar to the accused, to be mentioned in writing, in the judgment of the Court, in finding accused guilty, "for a first offence" either by evidence or "by raising the plea of guilty"; is competent to impose for such "first offence";
(i) a sentence of imprisonment for a term of less than three months and fine of less than Five Hundred Rupees for the offence punishable under the proviso to Sub-clause (i) of Sub-section (1) of Section 66 of the "Bombay Prohibition Act, 1949". (B. P. Act")?
And
(ii) a sentence of imprisonment for a term of less than seven days and fine of less than Rupees Twenty Five for the first offence punishable, in terms of proviso to Sub-clause (i) to Clause (1) and Clause (3) of Sub-section (1) of Section 85 of the B. P. Act, 1949?
(iii) Whether Innovative Judicial Directions and prescription of New Format, for recording plea of guilty of an accused, when statutory prescription of such a process or procedure has been prescribed in the Act, would be competent and legal?
Statutory Mechanism :
2. Chapter VII of the B. P. Act deals with the offences and penalties statutorily prescribed. This chapter consists of the provisions relating to the penalty for the offences committed under the B. P. Act. Section 66 provides for penalty in the case of person having committed offence in contravention of the provisions of the Act or of any Rule, Regulation or Order made or of any licence, pass, permit or authorisation issued thereunder, whereas, Section 85, B. P. Act, prescribes penalty for being drunk, for disorderly behaviour and drunk without permit or ineligible to hold permit under the B. P. Act. The relevant provisions of both the Sections, firstly, need to be evaluated and examined for the purpose of interpretation and applicability, and adjudication of the points in Focus. Therefore, let us at the outset, have the benefit of those relevant statutory provisions, which read hereasbelow :
Statutory provisions :
I. Section 66(1)(b) along with the proviso for the first offence, reads hereasunder :
"66. (1) Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made, or any licence, permit, pass or authorisation issued, thereunder :
(b) consumes, uses, possesses or transports any intoxicant other than opium or hemp,
(c) to (e) * * * * * * * * shall, on conviction, be punished, -
(i) For a first offence, with imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees :
Provided that 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 fine shall not be less than five hundred rupees :
(ii) to (iii) * * * * * * * *"
II. Section 85(1) along with the proviso for the first offence reads hereasunder :
"85. (1) Whoever in any street, or thoroughfare or public place or in any place to which the public have or are permitted to have access -
(1) is drunk and incapable of taking care of himself, or (2) behave in a disorderly manner under the influence of drink, or (3) is found drunk but who is not the holder of permit granted under the provisions of this Act or is not eligible to hold a permit under Sections 40, 41, 46 or 46A shall, on conviction, be punished -
(i) for an offence under Clause (1) or Clause (3),
(a) for a first offence, with imprisonment for a term which may extend to one month and with fine which may extend to two hundred rupees :
Provided that 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 seven days and fine shall not be less than twenty five rupees; and
(ii) for an offence under Clause (2) -
(a) for a first offence with imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees :
Provided that 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 one month and fine shall not be less than one hundred rupees; and
(b) * * * * * * (2) * * * * * *"
3. In view of the important interpretative exercise and jurisprudential exposition, so far as, proviso to the minimum sentence in those provisions of B. P. Act is concerned, which, obviously, would have wider legal implications and far-reaching ramifications, it was thought expedient to request the learned Senior Advocate, Mr. P.M. Thakkar, to assist and enlighten the Court, as an "amicus curiae" to which, he spontaneously and unhesitatingly, responded and agreed to assist, and he has rendered very good and valuable assistance in this group of matters, and therefore, we place on record our appreciation and grateful thanks to him for his useful assistance.
4. The learned A.P.P. Mr. L. R. Pujari has also rendered very useful and fruitful assistance in reaching the conclusion. We, also, place on record our appreciation for his assistance.
Penology and Minimum Sentence :
5. In the realm of penology, the Courts are empowered and invested with higher and wider discretion. Once, the conviction is established, the difficult and delicate issue of imposition of the penalty would arise requiring, the Court to consider, various aspects and variety of factors, particularly, "special to the accused", so as to reach a correct, appropriate, proportionate and just conclusion of imposition of sentence, which could be reasonable, adequate and proportionate to the category and nature of culpability and type of criminality established against the each accused persons. However, of late, the legislatures, State, as well as Central, have thought it fit and expedient in their wisdom, while exercising legislative prerogatives and powers, to provide 'minimum sentence', and thereby, in the result, restricting the discretionary role and exercise of the powers, by Courts, in imposition of sentences in certain cases or certain enactments. The prescription of 'minimum sentence' is an important issue in the sentencing policy and legislative measures for penalties for offences.
6. Of course, there is a purpose and policy behind providing 'minimum sentence'. There are variety of reasons which have led to legislative prescription of minimum sentences for certain offences and in certain enactments. Again, it will be interesting to note, at this juncture, that the legislatures, while enacting and providing for minimum sentence, have made further provisions in many enactments, with the help of proviso or 'explanation' or otherwise for discretion, so that in a given fit case, on being satisfied, in presence of special and adequate reasons to be recorded in the judgment of the Court, the Court can exercise discretion vested in imposing the punishment lesser than 'minimum sentence'.
7. Wherever and whenever a minimum sentence is prescribed by the legislature, it is incumbent upon the Court to impose minimum punishment, once the conviction is recorded. However, in certain provisions or in any certain enactments, by providing for either proviso or otherwise, the Courts are conferred powers, for special and adequate reasons to be recorded in writing, to impose less than minimum, as in case of Sections 66(1)(b) and 85(1)(1) and (3) of the B. P. Act, which have also, strong nexus, sound reason, and sufficient rationale, as the commission of the offence is the outcome of variety of socio-economic and psycho-legal reasons, and at times, there may be cases, wherein, sufficient and adequate reasons, "special and peculiar to the accused" in a given case, may be available or may be present, and on being satisfied, in this behalf, the legislatures, in its wisdom, have further invested the Courts with discretion to impose less than minimum sentence in such a given situation. Of course, 'Change' and 'Revision' may be necessary upon change in socio-economic etc., reasons, as nothing could be static except 'Change'. But, it will be for the appropriate jurisdictions to consider.
Doctrine of Statutory Elasticity : Discretion
8. The basis for this is that in a proper and fit case, the Court must have more discretion having nexus and relevance with the "Doctrine of Statutory Elasticity" for power of imposing punishment or sentence than the rigidity or orthodoxy in treating all the guilty, of all the cases; upon conviction, with the same yardstick or standard of minimum sentence, on account of there being or in presence of any special and adequate reasons, in a given case and peculiar to the each accused. Let us, also, remember and recall the provisions mandated in Sections 235(2), 248(2) and 255(2) of the Criminal Procedure Code, 1973, which were absent, hitherto, in 'Repealed Code' of 1898. They, indubitably, radiate an imprint of the said Doctrine, as there is purpose and philosophy behind it, as articulated in 14th Report of the Law Commission of India in 1958, on Law Reform of Civil and Criminal Law, and also, 41st Report of Law Commission, on comprehensive Revision of the Code of Criminal Procedure, in 1969.
9. The proviso of both the Sections, Section 66(1) and Section 85(1)(1) and (3) of the B. P. Act, evidently, make it, unambiguous, that the Court is ordinarily under an obligation to impose a minimum punishment, once the conviction is recorded either under Section 66(1) or 85(1)(1) or (3) of the B. P. Act. Undoubtedly, the proviso, clearly, empowers, the Court to award less than the minimum punishment, if the Court, after convicting and before sentencing the accused, is of the opinion that for any special and adequate reasons to be recorded in writing in the judgment, the sentence of imprisonment for a term lesser than minimum is called for, and then, in that case, the Court can award lesser than minimum. Once, the discretion is vested in the Court to award less than minimum for any special and adequate reasons, the Court is under an obligation to record same in writing, the sentence of imprisonment or of a fine for a term lesser than minimum, in terms, of the proviso statutorily prescribed.
10. The quantum of sentence, is thus, in the discretion of the trial Court. Where the legislature has stepped in and circumscribed and fettered, partially, the discretion by directing the imposition of minimum sentence, the Court can exercise its discretion within the minimum sphere left open by the legislature. It could very well be visualised from the proviso to Section 66(1) and proviso to Section 85(1)(1) or (3) of the B. P. Act, That the State Legislature has circumscribed the discretion, requiring the Court to impose minimum sentence and left it open to award less than the minimum sentence, statutorily prescribed, for special and adequate reasons to be recorded in writing in the judgment. It leaves no any manner of doubt in our minds that it is always open for the competent Court to impose lesser than minimum, for in (sic.) presence of special and adequate reasons, to the contrary to be mentioned in the judgment of the Court, which are attributable and relatable to the accused in a given factual profile of the case of each accused.
11. It cannot be interpreted that the minimum sentence, prescribed in the proviso to both the Sections, would not give any option, whatsoever, to the Court or leave open any discretion to impose lesser punishment than "minimum". Although, surprisingly, unusually, it is in negative phrase or term. But, while reading plainly, it is evident, that by providing in the proviso in both the Sections, even in presence of special and adequate reasons to be recorded by the Court in the judgment, such an interpretation, in our opinion, would be diametrically opposite to the legislative prescription of sentence of minimum period and fine of minimum amount, and will efface and defy further discretion by vesting and empowering the Court to impose minimum sentence leaving Court to be unmindful of the mandate of statutory proviso in the said Sections to award less than the statutorily prescribed for special and adequate reasons in terms of the proviso. Would it not violate the proviso and underlying legislative jurisdictional design and desideratum? Answer is positively 'yes'.
12. Two negative words, "in the absence of" and "shall not be" obviously, would mean and radiate an imprint of presence of special and adequate reasons, to the contrary to be mentioned in the judgment, peculiar to the each accused, in a given case or trial. Therefore, in a given case, upon being satisfied by presence of special and adequate reasons, peculiar to the accused, the Court is empowered and invested with statutory discretion to impose lesser than minimum sentence as provided in proviso in both such Sections and similar such provisions in the B. P. Act. Even for that purpose in a given case, the Court is, obviously and completely, competent, upon satisfaction of Court, to impose, so far as, lesser sentence than minimum sentence is concerned, and in presence of special and adequate reasons, peculiar to the accused, even "Till Rising", and also, any amount of fine upon satisfaction of the Court less than minimum prescribed in proviso in both the Sections and other identical provisions.
13. This has been the consistent judicial adjudication policy and interpretations by host of pronouncements of single Bench of this Court to which references have been made in course of marathon submissions and resorted to. In our opinion, it is the correct and real interpretation. Any other view or interpretation would not only militate against the plain language, but also, would violate relevant statutory provisions, policy and purity of proviso laid down by the Legislature in its domain and prerogative legislative jurisdictional and statutory wisdom and prudence. Any pronouncement or judicial adjudication contrary to such forensic and jurisprudential interpretation and statutory mechanism cannot be upheld and sustained, as it would not lay down or expound the real and correct interpretation and proposition of relevant provisions of law. Thus, such an interpretation as suggested shall, diametrically, run opposite to the provisions of proviso laid down by the Legislature, in its domain and prerogative legislative-jurisdiction. Any pronouncement of" the judicial adjudication propounded in the judgments of single Bench, and relied on by the State contrary to such forensic and jurisprudential mechanism of provisions in proviso cannot he upheld and sustained, being contrary to the provisions of proviso of those Sections of B. P. Act.
The Minimum Sentence in the context of Criminology and Penology :
14. A person who is an accused who has been found guilty of a criminal offence is liable to be sentenced by the Court. The exercise of process of sentencing is of considerable significance for the contours of criminal liability; when legislatures create a crime, they authorise not only a stigma or affixing a labour of censor, on the offender or perpertrator, but also, the impostition of the certain deprivations by means of sentence. There are many forms of sentence. The most serious sentence is custodial one, and in number of cases, custodial sentence should be imposed, where the offence is so serious that only custodial sentence can be justified in terms of relevant law. The length of any custodial sentence should in most case be : "commensurate with the seriousness of the offence". In deciding on the sentence in particular cases, the Court should take note and cognizance of various factors, including aggravating and mitigating the offence, and also other extenuating circumstances relevant to, in the given case. It is in this context, intimate interactions between sentencing process and criminal law policy and the legislative mandates must be kept live on mental radar.
Doctrine of Proportionality :
15. In sentencing terms, one consequences of this is that there are more broad offences with high maximum sentences, giving more discretion to the Courts at the sentencing stage. No doubt, criminal law itself proclaims individual responsibility for actions, maintaining strict standards of contact and setting its phase publicly against idea that social or other circumstances can excuse incriminating behaviour or conduct. Whereas, at the sentencing stage, Courts do not recognize from time to time exculpatory by proceeding or surrounding circumstances. It is in these context, in criminal law in certain provisions and in certain criminal enactments statutory and judicial discretion is invested in the Courts, so that, upon exercising the sentencing process the Court can take into consideration, write upon circumstances, special and adequate reasons for each accused emanating from the record and peculiar to the each accused so that idea of 'proportionality' can be considered and maintained. Whilst the notion is cruel as an underlying justification for the punishment system, the idea of proportionality ought to have been of central importance to the choice and quantum of sanction in a particular case and keeping in mind the special and adequate reasons attributable and referable peculiar to the each accused. Therefore, 'proportionately' in this sense, also finds a place in and several other views and approaches to sentence.
16. The aims of sentence are not simply part background of the criminal law : they have implications for the sake of the criminal law itself. Thus, 'proportionately' should be a key factor in the structure of the criminal law. It is a major function of the criminal law not, only, to divide the criminal from the non-criminal, but also, to grade offence and to brand or label them 'proportionately'. There is a deep divergence between desert theories and deterrence on the question of culpability and excuses for causing harm or resultant injury. The answer to the question "Does this person deserve punishment?", sometimes differs from the answer to the question, "Would the punishment of this person deter others in similar situation?"
17. There are, also, frequent references to search and research that as material appearing of criminal justice, to give some interaction of social context in which the criminal law operates. Much more coverage given to this contextual issues, such as enforcement policy, police powers, the pre-trial concession of case, and sentencing but within the confines of this, where these issues have been treated, as less important than the constitution of doctrine. It is, therefore, an execise to recognise the constitutional responsibility of the Courts in developing the law and interpreting legislations. There is, also an endeavour to remain allert to the implications for law enforcements of living areas of discretion when formulating laws.
Characteristics of sentencing doctrine :
18. The guilt once established, the sentencing dilemma commences. The statutory discretion is given to the Courts in sentencing the offenders. Needless to reiterate that the determination of appropriate sentence for the convicted persons is, as important as the adjudication of the guilt of the accused in the modern sentencing system. The importance of the modern sentencing system lies in the individualisation of the punishment, which itself lends to rehabilitation and reformation of the offenders in the modem sentencing system in the realm of Neo-Penology and Modern Criminology.
19. Indeed, in the process of sentencing or deciding the punishment, relevant circumstances, special and adequate reasons, peculiar to each of the accused, including aggravating or mitigating factors are important. There cannot be an exhaustive list of special and adequate circumstances and reasons, peculiar to the accused, as it would depend upon variety of circumstances. Really, there is impossibility of laying down standards for special and adequate reasons, mainly, due to the fact that it would be a domain of circumstances or reasons, special and adequate, peculiar in a given fact situation in a particular case of each accused.
Landmark Case-Law :
20. Upon the pronouncement of landmark decision in "Jagmohan Singh v. State of U. P., AIR 1973 SC 947" and consideing the recommendation made by the Law Commission of India on Judicial Reform and Revision of Law and Procedure in Court in the Code of Criminal Procedure, 1973, there came to be incorporated for the first time, Sections 235(2) and 248(2), to ensure a great awareness on the part of the Courts to examine the case of each accused on the facts of each case, more closely, so as to determine the most appropriate sentence. This read :
"Section 235(2) .....If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence and then pass sentence on him according to law."
"Section 248(2) ......Where, in any case, under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of Section 325 or Section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law."
Section 360 of the Code provides for probation in certain cases, whereas, Section 325 of the Code refers to procedure when the Magistrate cannot sentence with sufficient severity or that the accused ought to receive punishment, different in time from them than which Magistrate is empowered to award, for submitting his proceedings and forward the accused to the Chief Judicial Magistrate to whom the Magistrate is subordinate.
Pre-sentencing Policy Desideratum :
21. The very benign design and object of hearing the accused before passing the sentence is to direct the Court's attention to such matters, as to emerging from factual spectrum, including the following :
(i) The nature of offence.
(ii) The circumstances :- extenuating or aggravating of the offence.
(iii) The prior criminal record, if any, of the offender.
(iv) The age of the accused and also his dependents.
(v) The record as to the employment.
(vi) The background of the offender with reference to education, home-life, sobriety and social adjustment, emotional and mental condition of the offender.
(vii) The prospects for rehabilitation.
(viii) The possibility of return to normal life in the community.
(ix) The possibility of treatment or training of the offender.
(x) The possibility that the sentence may serve as a deterrent to crime to the offender or to others and the community needs, if any, for such deterrence in respect to the particular types of offences in the larger social interest and public good.
(xi) Anthropological reasons :
(a) Influence of social environment on the conduct.
(b) Resultant impact of the crime so as to see whether there is harm to the individual like accused or others, for keeping in mind interest and good of larger section of society.
(xii) Any other special and adequate reasons not covered in (i) to (xi).
22. The cumulative legislative mechanism and its effects of the provisions of Sections 235(2), 248(2), 354(3), 354(4), 360 and 361 of the Code of Criminal Procedure, 1973, by and large, is that the Court is to ensure, greater seriousness and awareness in examining each case with a view to determining the most appropriate sentence or for passing other post-conviction orders. It will be interesting to refer to the observations made in the Report of the "Indian Delay Committee", as early as, in 1919-1920, which are still vivid and valued even today. The Report observes :
"The Criminal Courts.....are to a great extent without reasons necessary to enable them to adjust the punishment to the offender."
"...In this country, if not in all countries, the information, which is available to the Judge at the time of trial as to the antecedents of a prinsoner, his character and environment and causes which conducted to the commission of the crime, is found very inadequate."
Other Important Contours of Minimum Sentence :
23. Indubitably, the Courts can exercise discretion while fixing the appropriate sentence where maximum punishments have been provided, but they are helpless in situations where minimum sentences are laid down. It is said that it creates danger to the individualisation of punishment when the law enjoins the Court to pass a fixed sentence. The danger has become all the more serious because of the increasing use of minimum punishment in recent legislations. Of course, one major reason advanced in support of minimum punishment is that such punishments are effective deterrents for curbing the crime. The Law Commission of India in its 11th Report of Judicial Administration, has clearly adverted to this problem and has observed :
"The theory that more severe the punishment the greater the deterrent effect is itself a matter of controversy. If has not been ascertained whether there has been a fall in commission of these offences where enhanced penalty has been assured by prescribing minimum sentence."
Another theory advanced in favour of minimum sentence does not receive more attention. Minimum sentences have become necessary, it is said, because of the tendency on the part of the Judges to impose inadequate and inappropriate sentences. Though, the Law Commission considered this argument, also, but doubted the correctness of its premise and its basis. Here, at this stage, we do not propose to divulge in meticulous analysis and evaluation of the imposition of statutory minimum sentence, whereby, denying the accused the benefit of any special equity of mitigating circumstances, which otherwise would result in a lighter sentence itself is marked of unusual severity.
Proportionality in Punishment and Justifiable Sentences :
24. The basic principle of Criminal Jurisprudence has been that the punishment that fits the crime is the appropriate punishment in proportion to the culpability of the criminal conduct and it is what the offender or the perpetrator deserves for his crime. Having once reached to the issue of culpability, the next question will follow will be of sentencing. It will be easy enough then to decide on greater or lesser punishment according to law, lesser criminality or culpability and to assign penalties on the scale that reflects relative culpability amongst the crimes, both different kinds of crime and for different instances of same kind of crime. But, yes, that is only step in keeping the crime and punishment in propotion. However, the scale must itself be pitched, at a level, neither too high nor too low for otherwise, even though punishments for different crimes might not be out of proportion to one another on the scale, the scale itself might be generally out of proportion as, uniformly, excessive or uniformly inadequate or deficient. Therefore, in theory, all criminal justice, it is evidently articulated by author, Mr. Hyman Gross that the Criminal law adheres in general to the principle of "proportionality" in prescribing law according to the culpability of each kind of criminal conduct.
25. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges, in essence, affirm that punishment ought always to fit that crime; yet in practice sentences are determined largely by other considerations. Sometimes, it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes are, desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. It is, therefore, said that, inevitably these consideration cause a departure from just desert, as the basis of punishment and create cases of apparent injustice that are serious and wide-spread.
26. In this context, it is rightly said that when there are certain reasons why a person who is punished more generously or liberally for his crime, such punishment less than what he deserves for what he has done justifiable, and punishment in excess of what is not. It be remembered that peculiar and special conditions favouring the accused or the offender are absent and he will get away with his crime to the extent that he is punished less than he deserves to be, punishment less then he deserves is fruitless and also impose and for that reason alone it may not be justifiable, though certainly there are certain important things to be said against it, as well.
27. It is, also required to be noted that disproportionately large sentences in excess of blameworthiness would be as unjustifiable as disproportionately small sentences. Disproportionately small accountability is useful because it may not maintain respect for the law amongst the law-abiding, whereas disproportionately large sentences would be also futile and useless infliction of suffering, it represents needless suffering. Therefore, with a view to keeping law efficient and effective, as a measure for the law-abiding, the Court need not give those who break law no more than they deserve for breaking it, and what they deserve is measured precisely by the criminality of the conduct that violated the law.
28. The principle of mitigation like principle of proportionality, has both, the legislative and judicial applications. Discretional dispassionate can be granted by the Court appropriately in order to make sentences right with regard these and other things, after the Court has fixed the culpability. Condemnation for the crime would be no less, though it would be accomplished in a given fact situation, in many cases by less severe measures of punishment.
Utility v. Disparity :
29. In this context, it will be useful to mention that because of mitigating considerations, standards are uncertain. Good reasons turn out to be problematic and considerations though not be admitted at all often influence the sentencing Judge towards a more lenient sentence. The two major aspects which are exclusionary conditions for mitigating circumstances provide a foundation for suitable sentencing standards :
(i) Whether a proposed mitigating consideration would impair the utility of the sentences.
(ii) Inequitable disparity results when there is a special treatment for some that cannot be justified by principle that apply to all, and since everyone is entitled to equal standing before the law, such treatment cannot be encouraged.
30. The legislature, in one sense, has disfavoured the sentence to plummet below the minimum limit prescribed in view of the expression "shall not be less than", which is peremptory in tone. It appears, therefore, that, normally, the Court has no discretion even to award a sentence less than the said minimum. Nonetheless, the legislature was not oblivious of certain very special and adequate situational realities obtainable in a given case and peculiar to the each accused in the given case and the profile of facts and circumstances of case in which the sentence is being awarded.
Speciality with or versus Adequacy of Reasons :
31. It will be really interesting to refer the expression special and adequate reasons. It, clearly, indicates and evidently manifests that it is not enough to have special reasons, nor adequate reasons disjunctively. There should be a set of conjunction, both for enabling the Court to invoke the discretion. The reasons which are general or common in many cases also cannot be regarded as "special and adequate reasons", but such reasons should be peculiar and attributable to the each accused in a case, as all the general or common reasons or grounds cannot be regarded as "special and adequate reasons". Therefore, the Court has to remain very altert and serious, and considering the overall factual profile and conspectus referable to each accused in such case, in view of the clear mandate of the proviso in a given case for admitting the case of the prescriptive periphery of the proviso and making departure from minimum sentence, by exercising discretion, the Court has an incumbency to record that there are special and adequate reasons for that and such reasons should be articulated clearly in the judgment of the Court, as statutorily prescribed.
Flagship Appeal and others :
32. In this group, in Flagship matter, Criminal Appeal No. 477 of 2002, and allied other matters, arising from various judgments and orders recorded by the learned trial Magistrates, relating to commission of various offences punishable under Sections 66(1)(b), and 85(1)(3) of the provisions of the B. P. Act read with Sections 110, 117 and 135, of the Bombay Police Act, the main grievance voiced, on behalf of the State, has been that, notwithstanding there being a minimum sentence requiring to be imposed for the first offence, the learned trial Magistrates, in this group of matters, have imposed sentences less than the minimum. Therefore, in short, the main contention, of the State is that the learned trial Magistrates could not have imposed sentences lesser than the minimum prescribed in view of three judgments of the single Bench. To reinforce this contention, serious reliance has been placed on the following three judgments of the same learned single Judge of this Court :
(i) "State of Gujarat v. Uttam Bhikabhai Prajapati, 1990 (2) GLR 1244".
(ii) "State of Gujarat v. Thakore Somaji, 1995 (1) GLR 548".
(iii) "V.K. Bhatt, Provident Fund Inspector v. Aryodaya Ginning Mills, Ahmedabad, 1996 (2) GLR 38".
33. Placing strong reliance on the aforesaid three decisions of this Court, it has been, vehemently, submitted that it was not open for the learned trial Magistrates to accept the 'plea of guilty' offered by the accused-persons and award sentences lesser than the minimum prescribed. Thus, it is the submission, raised on behalf of the State, that in view of the aforesaid decisions and judgments of this Court, it was not open for the trial Magistrate to accept the 'plea of guilty' as being not in judicially prescribed format in the said judgments, but also not open to award sentences lesser than the minimum, even for the 'first oeence', as it would be contrary to the said judgments until reconsidered or amendment in law is made. Such submission is devoid of any force of law and logic, even on a plain, if not, forensic, interpretative exposition of the proviso, which is common in both the Sections of the B. P. Act, and the reasons we propose to assign hereinafter.
34. The challenge in this group of Criminal Appeals and other allied matters is against the approach and the outcome in the impugned judgments rendered by the learned trial Magistrates in imposing sentences less than the minimum for the first offence while exercising the discretion vested in the Court by the proviso to Clause (i) of Section 66(1)(b) and Section 85(1)(3) and others of the B. P. Act, which may again be referred to, and it reads hereasunder :
"Section 66(1) * * * *
(b) to (e) * * * *
(i) for a first offence, with imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees :
Provided that 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 fine shall not be less than five hundred rupees;
(ii) to (iii) * * * *"
Whereas, the proviso to Section 85(1)(i)(a) referable to Clauses (1) and (3) reads hereasunder :
"Section 85(1) * * * * (1) to (3) * * * * *
(i) for an offence under Clause (1) or Clause (3),
(a) for a first offence, with imprisonment for a term which may extend to one month and with fine which may extend to two hundred rupees :
Provided that 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 seven days and fine shall not be less than twenty five rupees; and
(b) * * * *"
Whereas, the proviso to Section 85(1)(ii)(a) referable to Clauses (2) reads hereasunder ;
"Section 85(1) * * * (1) to (3) * * *
(i) * * *
(ii) for an offence under Clause (2)-
(a) for a first offence with imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees :
Provided that 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 one month and fine shall not be less than one hundred rupees; and
(b) * * * *"
35. From the plain reading and interpretation of the aforesaid proviso contained in Section 66(1)(b) to (e) and Section 85(1)(1) or (3), for the first offence, it becomes, immensely evident, and totally, unambiguous that the said provisions permit the learned trial Magistrates to award and impose less than the minimum sentence of imprisonment, as well as, fine provided, the Court is satisfied about the presence of special and adequate reasons to the contrary to be mentioned in the judgment and which are peculiar to the accused in a given case.
36. What should constitutes special and adequate reasons for the proper exercise of this discretion is obviously and indubitably by very nature of circumstances cannot be standardised. Such discretion, as employed, in the phraseology in the proviso, would depend upon the factual profile of special and adequate reasons available and present in each case. Naturally, there cannot be any die-hard recipe or fixity of circumstances or any straight-jacket formula for reaching subjective satisfaction, upon evaluation of the objective considerations of factual matrix of each accused in each case or the existence or presence of special and adequate reasons. The learned trial Magistrates are obviously, statutorily permitted to exercise the discretion and certain amount of latitude in such cases by legislative prescription, as articulated in the special provisions.
What Constitutes Adequate and Special Reasons :
37. In this context, it would be profitable to refer to the beautiful exposition and clear proposition in this behalf propounded by the Hon'ble Apex Court in a recent decision in "State of Karnataka v. Krishnappa, AIR 2004 SC 1470". Para 11, of this judgment is very material and relevant. It has been observed by the Hon'ble Supreme Court in that Para as under :
".......Whether there exist any 'special and adequate reasons' would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application."
38. Indeed, it would be impossible to conceive all the different factual situational realities, which may, in a given case, constitute special and adequate reasons for awarding less than minimum sentence with the help of proviso. Needless to mention, exercise of such discretion would depend upon the type and the category of objectives of legislation, the characteristic and resultant outcome of a nature of offence and such and other relevant circumstances. For example, special and adequate reasons for awarding lesser than the minimum sentence in a Prohibition Act may not even constitute special and adequate reasons for awarding lesser than the minimum sentence for offences under the Prevention of Corruption Act or Prevention of Food Adulteration Act and so on and so forth. What is important to be seriously considered in exercise of such discretion is the totality of circumstances, some of which may be individual factors peculiar and special to the each accused, whereas, some of others may be the resultant ramification and impact of the nature of offence committed by the accused on society at large and chances of repetition of such offences, etc., may all go into consideration. We are attracted to refer and quote the relevant observations lucidly articulated by the Hon'ble Apex Court in "State of Jammu & Kashmir v. Vinay Nanda. 2001 (2) SCC 504", wherein in Para 18, it has been observed :
"...None of the circumstances, stated in his affidavit, by itself constitute a "special reason." However, keeping in view the general conspectus of the case, we felt that under the totality of the circumstances narrated, the respondent has made out a case for invoking the proviso to Sub-section (2) of Section 5 of the Act."
39. The learned single Judge of this Court in "State of Gujarat v. Uttam Bhikhabhai Prajapati (supra)", arising form the commission of the offences punishable under Sections 65(a)(e), 66(1)(b) and 81 of the B. P. Act, has made certain observations, which are relied on by the State, to substantiate the contention that the aforesaid provisos do not admit any discretion to award the punishment less than the minimum. This submission cannot be upheld on various counts including being divorced from Text and Context, Colour and Content and misconceived perceptions of the observations made therein.
40. Upon true and correct evaluation and analysis of the said provisions engrafted in both the proviso, such observations cannot be taken and should not be taken to have laid down the appropriate and correct legal propositions as argued, when and upon the correct interpretative evaluation, forensic and jurisprudential exposition and interpretation of proviso has been appropriately projected into direct focus. Again, any interpretation of provision, which is contrary to the interpretation and exposition of law, expounded by the Hon'ble Supreme Court in the decisions referred to hereinabove and others, which are proposed to be referred to, hereinafter, would not be in accordance with law, and obviously therefore, cannot be sustained and approved,
41. In the light of the facts of the case, the learned single Judge of this Court in case of "State of Gujarat v. Uttam Bhikhabhai Prajapati (supra)" did not accept the "plea of guilty" and made certain observations, which at the best ought to be confined to the facts of that case. It cannot be contended that this Court in that judgment has laid down clear proposition of law and will have universal application in all such cases. At the best, it was the decision rendered in the light of the peculiar facts noticed by the learned single Judge, upon reaching to positive conclusion of illegal "plea bargaining". Therefore, the State cannot be permitted to contend that all offences under the B. P. Act, where minimum sentence is prescribed, the learned trial Magistrates must adhere to and invariably follow said three decisions of same learned single Judge of this Court, irrespective of peculiar and special fact situation and circumstantial and contextual profiles, Truly speaking, the words, "special and adequate reasons" in the context in which they are employed, would only mean "special and peculiar" to the accused, upon whom sentence is proposed or is being imposed. It is incumbent upon the Court to consider and evaluate objectively reasons advanced in support of each individual accused and in each case, wherein, sentence is to be awarded, so as to reach clear and correct subjective satisfaction based on objective assessment of facts whether or not, to award less than minimum sentence, in terms of proviso.
42. It is rightly said the word "special" has to be understood in contradiction to word "general" or "ordinary". It becomes apparent and unquestionable from the language employed in the proviso that the reasons to be recorded in writing in judgment for less than the minimum sentence, on the ground of presence of special and adequate reasons in the light of sentencing process must be special and adequate to the circumstances in a given case and peculiar to the accused in each case. It is, therefore, very clear that the discretionary jurisdiction empowered in the trial Magistrates must be based on and in presence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court for each case and each accused.
43. What is special and peculiar to the accused in one case may not be same or special and peculiar for the accused in other case. It is, therefore, true that reason should not be "general" or "ordinary", but it must be special and adequate peculiar to the each accused in a given case. The contention of the State that the trial-Magisteraial Courts should have taken and treated the aforesaid three judgments of this Court as a clear proposition of law that in no case less than minimum punishment could be imposed is not sustainable, as, it would lead to a situation where there is no discretion left open for the trial Magistrates to impose less than the minimum, even in presence of special and adequate reasons referable and attributable to the fact situations of the case and peculiar and pertaining to the each accused and it is also; diametrically opposite to the legislative intendment of proviso in both the Section. Otherwise, provisions of proviso would be rendered otiose and nugatory.
44. Such discretion is always open for the Court, while passing through, the process of sentencing the accused for the offences under the aforesaid provisions of the B. P. Act. The trial Court for the first offence has to award minimum sentence in absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court. For the first offence, the maximum punishment is, also, prescribed, whereas, minimum sentence statutorily prescribed is required to be awarded, provided there is absence of special and adequate reasons to be mentioned in the judgment of the Court. However, if special and adequate reasons, peculiar to the facts of each accused in a given case, are not absent, in other words, are present, then the Court is obliged to consider and evaluate those reasons, peculiar to the accused for the purpose of exercising the discretion engrafted in the proviso, while undergoing the process of awarding sentence for the 'first offence',
45. We are surprised to learn from the submissions that the Courts of trial Magistrates have many times taken or have been lead to, treat the aforesaid three decisions of the same learned single Judge, as if the trial Courts have no discretion to award less than minimum sentences, even, in absence of special and adequate reasons to be mentioned in the judgment of the Court, more so, when, "plea of guilty" has been raised. In fact, minimum sentence has to be awarded, only, in absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, and when two negatives are employed in both the proviso, it would mean that in absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, the trial Court has real discretion to award less than the minimum sentence of imprisonment, as well as, fine. As such, this is the real and manifest statutory frame and purpose and object enshrined in the proviso by the legislature in its wisdom in B. P. Act.
46. We are, therefore, in full agreement with the contention, advanced on behalf of the accused persons and by learned amicus curiae in this group of matters, that the observations and the conclusions reached by the learned single Judge in that case of "State of Gujarat v. Uttam Bhikhabhai Prajapati (supra)", arising from the offences punishable under the B. P. Act, are not supportable and acceptable as submitted and desired by the State. We find substance in the plea that the real forensic perception and correct jurisprudential exposition was not brought to the notice of the Court in those cases as a result of which those observations and conclusions are contrary to the plain and proper propositions of the provisions of proviso and case law laid down by the Hon'ble Apex Court in the cases referred to, in this judgment by us and relied on by the amicus curiae, learned Senior Advocate Mr. P. M. Thakkar.
47. Where there are mitigating or extenuating circumstances present or available on the record, which are peculiar and special to the accused and which may justify imposition of any sentence including "Till Rising", less than the prescribed minimum to the accused, it is always open for the Court to exercise the discretion, in terms of the provisions incorporated in the proviso. What is special and adequate will have to be judged by the trial Court, objectively, depending upon the facts of each case. If the conditions specified in the proviso are present, the Court has power to award less than the minimum sentence. Of course, for that, there must be special and adequate reasons and such reasons should be recorded in the judgment.
48. The Hon'ble Apex Court in "State of Orissa v. Janmejoy Dinda, 1998 (3) SCC 63", fully supports the view, which we propose to take in this group of matters. In that case, the question was interpretation of the proviso contained in Section 27(b)(ii) of the "Drugs and Cosmetics Act, 1940". It was held in that case that the proviso to Section 27(b))(ii) of the Act confers discretion and jurisdiction on the Court to reduce the sentence of imprisonment less than the minimum prescribed, if the conditions specified in the provisos are present.
49. In "Gurmukh Singh v. State of Punjab, AIR 1972 SC 824", while considering and interpreting the proviso to Section 16(1) of the Prevention of Food Adulteration Act, 1954, it has been held that though offences for adulteration of food must be severely dealt with, no doubt, depending upon the facts of each case, which cannot be considered as precedents in other cases. In that instant case, having regard to the fact that the offence was only for non-renewal of the licence within a reasonable time and the appellants were only petty traders, a mitigation in this sentence under -the proviso is justified. This proposition, also, supports the view, which we propose to take in this judgment, that when discretionary powers exist special and adequate reasons of the case and peculiar to the accused out to be considered.
50. The second reliance by the State is on the decision in the case of "State of Gujarat v. Somaji Jamaji (supra)", wherein, the respondent came to be tried for the alleged offences, punishable under Section 66(1)(b) of the B. P. Act (For possession) on his raising plea of guilty was convicted for the same and sentenced "till the rising of the Court and to pay a fine of Rs. 20." While dealing with that Criminal Appeal, the learned single Judge observed that though the minimum sentence is provided in the Act, the learned trial Magistrate has awarded lesser sentence and such a "plea bargaining" is not legal and deprecated the practice adopted by the Magistrate.
51. The third decision relied on by the State is the case of "V.K. Bhatt, Provident Fund Inspector v. Aryodaya Ginning Mills, Ahmedabad, 1996 (2) GLR 38." The learned single Judge, in this case, while dealing with the Criminal Revision Application in the matter under Employees' Provident Fund Act, prescribed a pro-forma to "plead guilty". The observations made in this decision and the judicial prescription of the pro-forma for pleading guilty, is seriously criticised on behalf of the accused and also by the learned amicus curiae.
52. As regards judicial prescription of a format for recording the plea of guilty by the learned single Judge in "V.K. Bhatt case (supra)", the learned amicus curiae has rightly submitted that the specimen format for the purpose of pleading guilty and praying for mercy in sentence as condition precedent, is also not in consonance with the Criminal Jurisprudence and specific provisions provided in the Code of Criminal Procedure, 1973. In Para 12 of the said decision, it has been observed :
"12. ....Accordingly, what occurs to this Court is laying down some conditions as conditions precedent for the accused to submit the purshis at the time of pleading guilty. If that is done and scrupulously followed, in all probability, neither the accused concerned dare even to pretend to plead guilty, nor the Court haunted by disposal mania would render wander away from its judicial path in accepting the same by imposing by flea-bite sentence, sometimes inadvertently, may be, sometimes advertently, even in not imposing the statutory minimum sentence prescribed under the Act. Accordingly, it is hereby ordered that - "No Court shall accept "plea of guilty" tendered by the accused person, more particularly, in cases where in the statute has prescribed minimum sentence, unless and until, he submits the purshis in the specified form prescribed hereunder for pleading guilty along with adequate and special reasons, if any, for taking a lenient view of the matter, in the matter of awarding sentence."
SPECIMEN FORM FORM OF PURSHIS PLEADING GUILTY AND PRAYING FOR MERCY IN SENTENCE In the Court of the Learned Magistrate at ................................. Court No. ........................
Criminal Case No. ................. / 1999.............................. State/Complainant v.
............................... Accused Sub. : "Plead guilty and mercy in the matter of sentence."
Respected Sir, I, ...................................................... accused No. ................ in this case state that I have read / read over the complaint filed against me for the alleged offence(s) punishable under [A Sections ................ of the ............ Code/Act.
2. I have also been read-over and explained the charge against me, which is as under :-
CHARGE ..................................................................................................
..................................................................................................
3. I have also been informed by the learned Magistrate that for the alleged offences, the statutory minimum prescribed is S.I./R.I. for not less than the .......................years/months and/or fine of Rs.................. or both.
4. I have also been further informed by the Court that even if I plead guilty, it has no option to impose less than the minimum sentence prescribed under the Act; as stated above, unless I have some adequate and special reasons for praying less than the said minimum sentence.
5. Accordingly, having fully understood the consequences of "pleading guilty" I voluntarily plead guilty, I have not been promised to impose the lighter sentence, till rising of the Court and/or some small amount of fine only, if I pleaded guilty.
6. That I on being convicted on pleading guilty pray that having regard to the following "adequate and special reasons" your Honour be kind enough to impose less than the statutory minimum sentence prescribed.
ADEQUATE & SPECIAL REASONS
(i) For less than the minimum period of imprisonment.
(ii) For less than the minimum amount of fine.
..................................................................................................
..................................................................................................
..................................................................................................
(If reasons are more, then separate sheet can be annexed.)
7. On the basis of my above submissions, my plea of guilty be kindly accepted and I be imposed with some lighter sentence.
........................ ........................
Signature of the Signature of the Complainant Accused Date :- Date :- Before me ........................ Signature of the learned Magistrate Date :- It is further observed in Para 12.1 as under :
"12.1 It shall be the duty of every Court before which the accused pleads guilty, to record the same in the specimen form of purshis prescribed hereinabove, and accordingly, not to record the plea of guilty as directed would not only render the said plea illegal, but would also render the concerned learned Magistrate liable to proceedings for judicial misconduct."
Arraignment and its Premise :
53. It is very well known that the plea of the accused is an event occurring at the general trial Court level that formally initiates the trial process. As such, it is the offence again on which the accused is given an opportunity to answer the accusation. Here, at this stage, the accused is required to enter a plea. Punishment is held in open and generally, it begins with a formal reading of the accusation or indictment or charge, by which the accused is again, formally, advised of the charges against him. The accused, is therefore, required to answer the charge by entering a plea, at this juncture. This is the right of the accused, and no doubt, the plea may take one of the two forms : One, he may deny the accusation or charge against him, or another, he may plead guilty to the crime, as charged. If the accused pleads guilty, the Magistrate shall record the plea, as nearly as possible, in the words used by the accused, and may in his discretion, convict thereon.
54. In the criminal matters as in this group of Appeals, cases are tried by the Magistrates under Chapter XX of the Code of Criminal Procedure, 1973, which deals with the trial of Summons Cases by the Magistrates, the statutory mechanism and the frame of Chapter XX, the procedures for Summary trial have been prescribed in Chapter XXI of the Code of Criminal Procedure and the principles of" Criminal Jurisprudence would not permit the prescription of the format by Judicial fiat for the purpose of mode and manner for raising the "plea of guilty". The Court of law cannot add or subtract or ignore the statutory provisions incorporated in the enactment by the legislature in its wisdom. The making of a law or an enactment is a constitutional prerogative of the competent legislatures.
55. The function of the Court is to interpret the provisions of law. Law and statute making is exclusively within the jurisdictional domain of the legislatures. The Court cannot re-write any provision of any law by any judicial fiat or direction. Even the Constitutional Court, dealing with the constitutionality of the provision, cannot create or take away by adding or substracting from any of the provisions employed by the competent legislatures. Even the Constitutional Courts, while interpreting the correct meaning and real object of the law by its constitutional jurisdictional interpretation and adjudication, can propound and interpret correct law. Therefore, it is one of the fundamental principles, that no Court can re-write or reframe the provisions contained in the enactment made by the competent legislatures. The enthusiasm with which the direction to record the "plea of guilty" and prayer for mercy by prescribing specimen profoma for pleading guilty and praying for mercy in sentence and the manner and mode in which the specimen form is required to be filled up and signed by not only the accused, but also the complainant, as well as, the prosecutor concerned in the case before the trial Magistrate, in our opinion, is nothing, but re-writing and adding in the provisions of an enactment, and therefore, such a direction or judicial prescription of a form against the specific statutory provision, obviously, would be impermissible, unsustainable and not legal.
56. To an extent, it makes an inroad on the statutory rights and duties of the complainant, the accused and the Court. A general judicial fiat that no Court would accept the plea of guilty tendered by the accused person more particularly, in cases, wherein, the statute has prescribed a minimum sentence unless and until the accused submits the purshis in the "specimen form prescribed in the judgment for pleading guilty" along with adequate and special reasons, is not supportable, being contrary and not in consonance with the statutory provisions and outside the competence of the judicial adjudication. Such a direction and prescription of a form, contrary to the provisions specifically provided in the Code of Criminal Procedure would be incompetent and impermissible and illegal.
57. Though, we appreciate the enthusiasm anxiety and innovation to place in focus the said malpractice in raising "plea of guilty", we are unable to jurisprudentially and by settled proposition of law, uphold and maintain with utmost due respect, to the learned single Judge, such a judicial fiat by en block direction, to all trial Courts in all criminal cases, where minimum sentence is prescribed, and "plea of guilty" is raised. The fundamental canons of criminal jurisprudence much less against statutory provisions would not permit or allow such a view or perception and prescription of format. Therefore, in our opinion, the observations and directions contained in Paras 12 and 12.1 in "V.K. Bhatt's case (supra)", are also not compatible with the statutory provisions, and therefore, they cannot be sustained, being beyond the jurisdictional competence, and consequently, not legal and binding on trial Magistrates.
Statutory Prescription for Recording Plea of Guilty :
58. Let us at this stage have a close look into the statutory and mandatory provisions for trial and recording of plea in trial of cases before the Magistrate. Since, we are concerned with cases which are arising from the trial before the Magistrates the procedure is prescribed for trial of warrant cases by the Magistrate in Chapter IX of the Cr.P.C. which includes cases instituted on a police report, as well as, cases instituted otherwise then on police report.
59. It is interesting to note that Sub-section (2) of Section 240 provides that the charge shall then be read and explained to the accused and he shall be asked as to whether he pleads guilty of the offence charged or claims to be tried. Section 241 provides that if the accused pleads guilty Magistrates shall record the plea and may in his discretion convict him thereon. Now, it is not obligatory on the part of the Magistrate to convict him even if the accused pleads guilty, he may proceed with the trial.
60. In Chapter XX of the Cr.P.C., the procedure is prescribed for the trial of summons - cases by the Magistrates. Section 251 in this Chapter provides, that the substance of the accusation shall be stated to the accused and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. Whereas, Section 252 provides for conviction of plea of guilty. If the accused pleads guilty the Magistrate is obliged to record the plea, "as nearly as possible" in the words used by the accused and may in his discretion convict him thereon. Section 252 is corresponding Section to old Section 243 of the old Repealed Code of 1898. It becomes quite clear and unambiguous from the plain text and tenor of the Section 252, that the trial (Magisterial) Court is bound to record the plea, as nearly as, possible in the words used by the accused, but is not bound to convict him upon such a plea.
61. In our opinion, it is a mandatory provision. It will be material to highlight here that the requirement of Section 252 are mandatory in character, we are reinforced by the decision of the Hon'ble Apex Court in "Mahant Kaushalya Das v. State of Madras", reported in AIR 1966 SC 22. This Court, has also followed the principle enunciated in the said decision in a reported decision in "Chhotu Bhagirath v. State of Gujarat", 1972 Cri.LJ 548. The judicial prescription of recording a plea in a prescribed format as directed in V.K. Bhatt's case (supra) by the learned single Judge with utmost respect within our commands, if followed would run counter to the plain meaning and interpretation of Section 252, the provisions of which are mandatory in character.
62. Probably, the attention of the learned single Judge was not drawn to the said provision of Section 252 and the provisions of Section 262. The Section 262 of the Cr.P.C. provides a procedure in summary trial. In the summary trial, the procedure prescribed for the trial of summons case is required to be followed. The case on hand and the three decisions relied on by the State are the cases falling within the procedures of Chapter XX and XXI of the Code relating to trial of summons case by the Magistrate. It is in this respect and in this context the observations and directions of the learned single Judge in the case of V. K. Bhatt (supra) with respect are contrary to the provisions of law and the prescribed format cannot be maintained or sustained as legal and binding to the trial Magistrates.
63. It will be also material to refer the provisions contained in Para 103 of Criminal Manual provided in Chapter IV - for summary trials which reads, hereasunder :
"Though, it is not necessary to frame a formal charge in cases tried, summarily, it is always desirable that the ingredients of the offence, as also, the particulars thereof with which accused is charged are clearly stated to him. In case the accused pleads guilty the Magistrate should question the accused, in respect of each particular of the offence and record in full his answer to the same".
64. In Mahant Kaushalyadas case (supra), the accused was facing trial for the offence under Section 4(1)(a) of the Madras Prohibition Act. At the initiation of the trial, the particulars of the offence were explained to the accused by the interpreter, it was translated to the accused in Hindi by one Shri M. Sukumara Rao, Bench clerk of that Court, who had passed examination in Hindi. The "plea of guilty" by the accused was also interpreted to the Court by the same gentleman. The trial Court found accused guilty for the said offence, charged against him, and upon conviction, the sentence of one year's rigorous imprisonment and a fine of Rs. 50 was inflicted on the accused, which was confirmed by the Madras High Court in Appeal. On behalf of the accused, the plea was raised before the Hon'ble Supreme Court in an Appeal, which was brought by certificate granted under Article 134(1)(c) of the Constitution, from a judgment of the Madras High Court, that he was not afforded with fair and just trial of course, he had raised the "plea of guilty". It was contended that there was mis-carriage of justice.
65. It was held by the Hon'ble Supreme Court, considering the record, that the admission of the accused-appellant had not been recorded, "as nearly as possible in the words used by him" as required by Section 243 of the Criminal Procedure Code, 1898, a corresponding provision in the Code of 1973 is Section 252. The conviction was set aside on the ground that material mandatory requirements of old Section 243 of the old Code were not observed, and therefore, there was a violation of the said provision, vitiating the trial, and rendered the conviction legally invalid. It is, therefore, very obvious that Section 252 (old Section 243) is mandatory and the requirements of Section is not a mere empty formality, but is a matter of substance intended to secure and serve proper administration of justice. It is, therefore, an incumbency upon the Court to follow the mandate of Section 252 while recording plea, "as nearly as possible in the words used by the accused" as required under this Section. How could such a statutory mandatory provision be substituted by a judicial direction or adjudication by prescribing special format in this behalf?
66. The case of Mahant Kaushalyadas (supra) was also followed by the learned single Bench Judge of this Court in Chhotu Bhagirath v. State of Gujarat, 1972 Cri.LJ 548 (Coram : T.U. Mehta, J. as His Lordship then was). In that case, also there was a summary trial, as in the case of the criminal appeals in this group. The reference made by the Court of Sessions Judge, Rajkot, was allowed, holding that trial of the accused was vitiated and order of conviction and sentence passed by the trial Court was set aside, holding that old Section 243 (new Section 252) provided that if the accused "pleads guilty", the said plea should be recorded by the Magistrate, "as nearly as possible in the exact words used by the accused". It was further observed and held that if the Magistrate fails in doing so then obviously he does not provide any record to the appellate or revising authority to know any of the actual words, the accused had pleaded guilty and also to judge whether the said words really amounted to a plea of guilty or not.
67. It is therefore, evident that the reason behind the mandatory provisions of Section 252 (old Section 243) requires the Magistrate to record the plea of accused, "as nearly as possible" in his own words so that it could be evaluated and examined by the higher forum, as to whether there was actual plea of guilty or not and the procedure contemplated is very important and substantial because the plea of guilty raised by an accused would debar him from preferring an appeal against his conviction. Under these circumstances, it would not be open to any Court to disregard the specific provision contained in Section 252 of the new Code (old Section 243), and non-compliance of this provision, would, therefore, not be controlled even by the provisions contemplated by Section 465 or Sec, 537. It is therefore, incumbent upon the Court to record, whenever, an accused in a summary trial raises the plea of guilty, so as to place on record, what was the exact plea with a view to afford protection to the accused and proper administration of justice. It is in this context, how could a Court with a judicial adjudication or direction prescribe new format for recording the plea of guilty and to be also signed by the complainant contrary to constitutional safeguards for the offender and statutory mandate?
Contours and Contradiction of plea of guilty and "plea bargaining"
68. We make it clear that the grievance and voice raised by the learned single Judge against impermissible "plea bargaining" is not, hereby, sought to be belittled or in any way intended to be diluted. But the 'plea bargaining' and the raising of "plea of guilty", both things should not have been treated, as the same and common. There it appears to be mixed up. Nobody can dispute that "plea bargaining" is not permissible, but at the same time, it cannot be overlooked that raising of "plea of guilty", at the appropriate stage, provided in the statutory procedure for the accused and to show the special and adequate reasons for the discretionary exercise of powers by the trial Court in awarding sentences cannot be admixed or should not be treated the same and similar. Whether, "plea of guilty" really on facts is "plea bargaining" or not is a matter of proof. Every "plea of guilty", which is a part of statutory process in criminal trial, cannot be said to be a "plea bargaining" ipso facto. It is a matter requiring evaluation of factual profile of each accused in criminal trial before reaching a specific conclusion of it being only a "plea bargaining" and not a plea of guilty simpliciter. It must be based upon facts and proof not on fanciful or surmises without necessary factual supporting profile for that.
69. It is unquestionable that concept of "plea bargaining" is not recognised in any jurisdictions in our country. Therefore, it is illegal. The Hon'ble Apex Court has time and again raised clear and consistent voice, in host of the judicial pronouncements, and also has come down heavily, against the trick and play of the "plea bargaining". Therefore, so far so "plea bargaining" is held not only illegal and unconstitutional but also intending to encourage the complain, collusion and pollution of the poor punt of justice. Therefore, the observation by the learned single Judge in those cases against the "plea bargaining" and short circuiting the proceedings cannot be questioned.
70. However, as observed by us, hereinabove, that every "plea of guilty" during the course of observance of the mandatory procedure prescribed in Code and particularly in Sections 228(2), 240(2), 252 and also in Section 253 for the trial of case by the Magistrates, when plea of guilty is recorded as per the procedure prescribed cannot be said to be a "plea bargaining". In a criminal trial there must be justifiable material on record and any assumption, presumption or surmise having no nexus with the factual profile of a given case of an each accused cannot be sustained. It is matter of proof like any other proof of fact, as provided in the Evidence Act. It cannot be contended that, whenever, the "plea of guilty" is raised, then less than minimum sentence awarded though may be in the light of "special and adequate reasons" peculiar to the each accused and in the factual and contextual profile of a given cases, is only "plea bargaining". It has to be proved and shown to the satisfaction of the Court. It cannot be straightaway deduced. In the said case before the learned single Judge, there may be supporting and justifiable material to hold it as "plea-bargain". But each and every case cannot be termed or treated same way.
71. However, we are also tempted to state and suggest that in view of the inordinate delay in disposal of cases in general and criminal cases in particular, and huge backlog of cases in Courts, in the changed circumstances, introduction of concept of "plea bargaining" in our Criminal Jurisprudence and jurisdiction requires re-thinking and re-consideration. In some jurisdictions in other countries, "plea bargaining" in some of the cases, where larger interest is not involved and when the dispute revolves around the individuals, has been, successfully, introduced. It will be interesting to refer here the concept of "Nolo Contendere", practised in some of the jurisdictions like the United States.
72. Let it be reiterated that at present, there cannot be any question that "plea bargaining" is not recognised, so far and is not permissible. Whether "plea of guilty" is "plea bargaining" or not, will be a matter of fact to be examined in each case, from the factual matrix of the case and totality of the context and entire profile. It cannot be contended that every "plea of guilty" is always plea bargaining in case of each case and each accused. It cannot be also assumed without supporting facts and attending circumstances. It is a matter of proof and if on objective and independent evaluation of facts, it is found to the satisfaction of the Court, then it cannot be allowed and sustained, being not legal and permissible; in those cases based on facts and proof thereof. Thus, it is a matter of proof and evaluation of evidence in each case.
Doctrine of Nolo-Contendere : Practice and Prominence :
73. In United States, in some jurisdictions, the plea of "Nolo Contendere" is available "Nolo Contender" or "no contest" is not an 'admission of guilt', but rather a 'willingness to accept declaration of guilt', rather than to go to trial. It is treated as a guilty plea to serve one purpose not served by a guilty plea in a subsequent civil suit possibly arising out of same event. Guilty plea is admissible as evidence against the defendant (accused) but plea of "Nolo Contendere" is not. It may be stated that the expression, "defendant" is used in India in the civil dispute against whom civil action is taken whereas in United States, this expression is used in criminal trial also, and thus, the defendant is an accused. David Gorden has observed that the Latin word, 'nolo' means "I do not choose it'. This statement, variously, defined as 'plea of no contest' and 'not a plea of guilty' does not mean that defendant will not fight the same charges against him of the same as that of guilty plea. It admits the fact charged, but cannot be used as a confession of guilt in other proceedings. Acceptance of such a plea by a Court is discretionary.
74. The judgment of, conviction entered on a plea of "Nolo Contendere", may be used, by the accused as a basis of 'plea of double jeopardy', since conviction and punishment, after the "Nolo Contendere" plea operates for the protection of the accused against subsequent proceedings, is as full as a form of conviction or an acquittal after the plea of guilty or not guilty.
75. As held in "Fox v. Schedit and in State exrel Clark v. Adams, 363 US 807", the plea of "Nolo Contendere" sometimes called also "Plea of Nolvut" or "Nolle Contendere" means, in its literal sense, "I do no wish to contend", and it does not origin in early English Common Law. This doctrine, is also, expressed as an implied confession, a quasi-confession of guilt, a plea of guilty, substantially though not technically a conditional plea of quality, a substitute for plea of guilty, a formal declaration that the accused will not contend, a query directed to the Court to decide on plea-guilt, a promise between the Government and the accused, and a Government agreement on the part of the accused that the charge of the accused must be considered as true for the purpose of a particular case only.
76. Be it noted, that raising of plea of "Nolo Contendere" is not ipso facto, a matter of right of the accused. It is within the particular discretion of the Court concerned to accept or reject such a plea. However, if the Court accepts such plea, it must do so unqualifiedly. It is, therefore, clear that if such plea is once accepted, by the Court, the accused may not be denied, his right to raise such plea. The Court cannot accept such plea having rights of the accused and determination of facts on any questions of law. Of course, the discretion of the Court, if plea is accepted, has to be exercised in light of special facts and circumstances of the given case. It is, also held at times that such discretion vested in the Court has to be used only when special considerations are present. It is, also important to mention, at this stage that in the absence of statutory provisions to the contrary, consent of a prosecutor is not required as a condition for refusing the plea of 'Nolo Contendere' by the Court. And the fact that the prosecutor's consent is not generally required would not tantamount to non-consideration of his version or attitude. The Court is required to consider the prosecutor's version as an important factor in influencing the Court in deciding whether such plea should be accepted or not.
77. Upon the acceptance of a plea of "Nolo Contendere" for the purpose of the case in which such a plea is made, it becomes an implied confession of the guilt equivalent to a plea of guilty; that is the incidence of plea. So far as a particular criminal action in which the plea is offered is concerned, rather than the same, as of a plea of guilty, of course, it is not necessary that there should be adjudication by the Court that the party whose plea is accepted as guilty, but the Court may immediately impose sentence. This proposition is very well elucidated in "United States v. Risfeld, 340 US 914". However, it may be noted a new dimension was evolved in "Lott v. United States, 367 US 421", where the Court, after stating that the plea is tantamount to an admission of a guilt for the purpose of the case, added that the plea itself, does not constitute a conviction, and hence, is not a determination of guilt. As found from some of the judicial pronouncements, it is beyond the purview of the Court once a plea of "Nolo Contendere" is needed to make in adjudication to the guilt of the accused.
78. The plea of "Nolo Contendere", barring a few percentages of cases, has been recognised in the administration of criminal justice in many countries, including the United States, and has resulted into substantial reduction in the workload of the criminal justice system. Such a plea, it has been stated, has a success of practical aspect over the technical one. In the criminal justice delivery system, should India not consider the introduction and employment of such a plea when Courts are flooded with astronomical arrears, the trial life-span is inordinately long and the expenditure is very heavy, as an effective Alternative Dispute Resolution in certain identified criminal cases? This issue, undoubtedly, requires serious consideration at this juncture, and a trial on experiment basis, also, when we are at the crossroads and Courts are obliged to engage and address itself in early, easy, less expensive and simple way of disposal of criminal cases in the criminal justice system. Of course, the introduction of such a system will have to be considered at the level of Government by appropriate legislative measures. However, our voice shall not be a cry in wilderness more so when innovative and dynamic strategies are evolved for "Excellence in Judiciary" in 2005, by My Lord Chief Justice of Supreme Court, Hon'ble Mr. Justice R.C. Lahoti. We, are concerned collectively, collaboratively and constructively, and therefore, we ought to take seriously and strive assiduously and honestly for such ingeniously and innovatively ordained by My Lord, Chief Justice of Supreme Court, Hon'ble Mr. Justice R. C. Lahoti, as a novel and noble, neo-dynamics in the armoury of Judicial Reforms and Legal Rehabilitation of the ideal Fold and System, which is undoubtedly Basic and Cornerstone in the philosophy of our Constitution. We all belong to such a Fold, wherein we owe a duty to contribute for restructuring and reshaping Administration of Law and Justice, so as to provide expeditious easy and less complex and less processual, for making it easily accessible and affordable for common and pauper litigant, which is as such a heart of Judicial Anatomical Atlas and a Consumer of Justice Dispensation in our country, for the recovery and rejuvenation the faith of such litigants and resultant enhancement of the Majesty of Justice.
79. The plea of "Nolo Contendere" in our country is not used in strict sense in absence of any statutory provision or necessary enactment. However, this plea plays a very important role in many jurisdictions in United States, Scotland and other European and non-European Courts.
80. When in India, the Courts are flooded with astronomical arrears of cases and reduction of backlog of cases is important and out of the pending cases, almost 70% - 80% of the cases are reportedly arising from criminal jurisdiction, and again, reportedly, the rate of conviction is below 5% to 7% out of 100 cases. Could it be not said that it is opportune time, to at least, consider such a plea which has been usefully and successfully employed as an effective A.D.R. in some parts of the world and that too, in petty cases and cases in which only individual interests are concerned and larger public interests are not at stake or involved, to begin with and that too on experimental basis for a short period as one of the means and methods to reduce the unbreakable heavy and huge backlog of cases with existing means and measures in India and particularly in Criminal Courts. We have suggested this jurisprudential "Doctrine of Nolo Contendere" as one of the alternatives to arrest menace of arrears with a view to find out whether in certain type of criminal cases and in certain type of (identified-earmarked) criminal trials, it needs to be tried and experimented for speedy and easy justice, as an effective A.D.R. more so, when in many jurisdictions in foreign countries, it has been gainfully and successfully used and employed as such a plea does not enter into the consideration in other litigation in clear terms of such a doctrine.
Propositions of Criminal Justice reforms :
81. It is true that the idea of "plea bargaining" in jurisdictions in India is not permissible, but in view of the changed circumstances and present state of affairs of the criminal justice delivery system in our country, a Bill has been introduced by the Government, known as "The Criminal Law (Amendment) Bill, 2003 (Bill No. LX of 2003)" in which Chapter XXIA, relating to "plea bargaining" is proposed to be introduced in the Code of Criminal Procedure, 1973. In the said Bill, new Sections, i.e. Section 265A to Section 265K are proposed to be added in the Code of Criminal Procedure so as to provide for raising the "plea bargaining" in certain types of Criminal Cases.
82. One of the main aims and objects of introduction of certain provisions in general and for the introduction of "plea bargaining" by amendment in the Code of Criminal Procedure in particular, has been the speedy disposal of criminal cases. The disposal of criminal cases in Courts, unquestionably, takes considerable long time and in that, in many cases, trials do not commence for as long as period as 3 to 5 years after the accused has been remitted to the judicial custody. Large number of persons accused of criminal offences particularly, indigent, illiterate and rustic persons are unable to secure bail, for one or the other reason and have to languish in jail, as undertrial prisoners, for years. Though, not recognised so far by the Criminal Jurisprudence, it is seen as an alternative method to deal with the huge arrears of criminal cases. It is really a measure and redressal, if brought on statute and also operative, it shall also add a new dimension in the realm of Judicial Reforms.
83. To reduce the delay in the disposal of criminal trials and appeals as also to alleviate the suffering of undertrial prisoners, as well as, their dependents and keeping in mind the real purpose of Victimology, it has been rightly proposed to introduce the concept of "plea bargaining", as recommended by the Law Commission of India, in its 154th Report, on the Code of Criminal Procedure. The Committee of Criminal Justice Reforms under the Chairmanship of Dr. (Justice) V.S. Malimath (formerly, Chief Justice of the Kerala High Court), has also endorsed the Commission's recommendations, as well as, by Review Committee on Constitutional Reforms. The system of plea bargaining (as recommended by the Law Commission of India in its Report) should be introduced, as part of the process of decriminalisation. It means pre-trial negotiations between the parties during which the accused agrees to plead guilty in exchange for certain concessions by the prosecutor. The benefit of "plea bargaining" would, however, not be admissible to habitual offenders.
84. We are tempted to mention here that law should be stable but not standstill. The very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases, and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable. There should not be anything static. As such, "Change is only constant thing in the world". If the individual, society or for that purpose, nation feels allergic to the change for the reforms and remaining oblivious to the realism and prevalent situations, the very existence may be in jeopardy. It is, therefore, rightly said that all must have an open mind, as mind is like a parachute; it starts working when it is open. Although, hitherto, as a part of colonial legacy, "plea bargaining" has not been recognised, so far in our system and Criminal Jurisprudence. However, keeping in mind the huge arrears and long time spent in trials and resultant hardships to parties, and particularly, the accused and the victims of the crimes, the benefit of "plea bargaining" as an alternative method to deal with the dispute or question of offence requires serious consideration, which would not be admissible and available to the habitual offenders. We should remember a saying that "every saint has past and every sinner has a future" and also that "taw and justice should not be distant neighbours."
Epilogue :
85. After having threadbare considered, evaluated and discussed the rival submissions and valued submissions of 'amicus curiae' learned Senior Advocate Mr. Thakkar and the relevant and material provisions of Bombay Prohibition Act and Code of the Criminal Procedure, as well as, important pronouncements of the Hon'ble Apex Court coupled with the principles of Criminal Jurisprudence in summing up, we hold and decide upon all the three points formulated by us in the very commencement of this judgment, hereasunder :
(i) in the affirmative
(ii) also in the affirmative
(iii) not competent and not legal and not binding to Courts. Observations in that judgment in Para 12.1 are not legal, and therefore, not approved.
86. In short, in our conclusions on objective assessment and evaluation of the factual and legal profile, in this group of criminal appeals, a sentence of imprisonment for a period of less than minimum with the help of proviso and in terms of the requirements and on proof of existence of special and adequate reasons for a first offence, the Court is empowered and entitled to award less than minimum sentence on finding accused guilty either by evidence or by raising "plea of guilty" and judicial directions and prescription of special format contrary to the statutory provisions as observed by us, hereinabove, are not binding and required to be followed for recording the plea of guilty of accused and the proposition provided in three decisions relied on by the State are not affirmed and approved by us to the extent as stated above for the elaborate reasons and factual matrix and legal profile given hereinabove and upon true and correct interpretation and legislative intendments, forensic and jurisprudential exposition of the relevant propositions of the said provisions of Bombay Prohibition Act in general and proviso to Sections 66 and 85, so far as first offence is concerned.
87. In the end-result, all the appeals, at the instance of the State are without any substance and quite meritless, and therefore, they shall stand dismissed for the foregoing discussions and reasons.