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Bangalore District Court

Ebrahim Ahmed Hazaea vs State By on 8 February, 2023

                         1              Crl.A.No.25134/2021




IN THE COURT OF THE XXVIII ADDL. CITY CIVIL
   & SESSIONS JUDGE, Mayo Hall, Bangalore,
                   [CCH.NO.29]


Present :- Sri. K.M. Rajashekar, B.Sc., L.L.M.,

   Dated this the 8th day of February 2023


    Crl. Appeal No.25134/2021


    Appellant:          Ebrahim Ahmed Hazaea,
                        S/o Ahmed,
                        Aged 26 years,
                        No.30/7, 1st Main Road,
                        Chinnappa Garden,
                        Benson Town Post,
                        Bengaluru-560 046.


          (Pleader by Sri. Lokesh K.N)

                             .. Vs ..

    Respondent:        State by,
                       Pulakeshi Nagar P.S.,
                       Bengaluru.

                  (Public Prosecutor)
                             2             Crl.A.No.25134/2021



                      JUDGMENT

The Appellant-Accused has preferred this Criminal Appeal U/S 374 of Cr.P.C., being aggrieved by the Judgment of conviction and sentence passed by the learned XI ACMM, Mayo Hall, Bengaluru, in C.C.No.52935/2021 dtd: 16.7.2021 convicting him for the offenses punishable U/Sec.188 of IPC, Section 51(b) of Disaster Management Act and Section 14 of Foreigner's Act., on the ground that the accused has not committed any offense, he is a student and not running the restaurant, he had a student visa till 28-01-2022. The Trial Court not weighed the evidence, not ascertained the ownership, the sentence is bad in law etc.

2. The Learned Public Prosecutor opposes the claim of the Appellant and contended that it is very clear that there shall not be any appeal when the Accused pleads guilty. The very provision debars the Accused to prefer the Appeal once he availed the benefit of Section 252 & 253 of Cr.P.C. Absolutely, no case is made out by the Appellant regarding legality of sentence. 3 Crl.A.No.25134/2021

REASONS

3. For the sake of convenience, I have referred the parties as per their ranks in the trial Court.

4. The case of the Complainant-Respondent is as follows:

On 20.5.2021 the Police Inspector had instructed his staff to enforce the Government Covid-19 curfew guidelines and take necessary action against the violators and on the same day at 7.00 p.m., near Coles Park the staff deputed, observed that at Mehrab Restaurant and Cafe near Coles Park around 8-10 boys in violate of the Covid-19 guidelines were smoking flavored hukka and cigarette and were shouting and that thereafter the Police have taken custody of the said persons and on enquiry found that the Accused No.1 was running the Restaurant by investing money in the name of one Abhishek S/o Shanmugam. On enquiry the Accused No.1 admitted that he had allowed the other Accused to conduct party as two of the Accused were employees in the same Restaurant and without getting permission for allowing 4 Crl.A.No.25134/2021 them to conduct party and have recovered 5 flavored hukka. Hence, the complaint.

5. Upon careful perusal of materials on record, it indicates that the Appellant preferred this Appeal under Section 374 of Cr.P.C., questioning the order of conviction rendered by the XI ACMM, Bengaluru. It is seen that the Accused is charge sheeted for the offences punishable under Section 188 of IPC, Section 51(b) of Disaster Management Act and Section 14 of Foreigner's Act. It is seen that the Appellant voluntarily approached the Court by filing application under Section 253 & 253 of Cr.P.C., and pleads guilty.

6. Based on the said plead guilty the trial court passed following order Accused is present, his Advocate Sri. N.C is also present. Filed application U/Sec.252 & 253 of Cr.P.C., saying that he is going to admit the alleged guilt for the offences punishable U/Sec.188 of IPC and Sec.51(b) of The Disaster Management Act and also Sec. 14 of Foreigners Act.

Heard the arguments submitted by Learned Counsel for Accused and also Learned Sr.APP. At this stage, learned Sr.APP furnished copy of order in Cr.No.6080/2020 5 Crl.A.No.25134/2021 dtd: 22.6.2020 passed by the 30 ACMM, Bengaluru and th also order in CC No.28215/2009 dtd: 4.3.2010 passed by the 3 ACMM, Bengaluru and submitted that minimum rd penalty and sentence may be imposed by way of allowing the application. Hence, at this stage considering the averments of the application, submission made by the counsel for A.1 and also the Learned Sr.APP application is allowed acting U/Sec.241 of Cr.P.C., and court proceed to pass the following:

ORDER Accused is convicted for the offence punishable U/Sec.14 of Foreigners Act and sentenced to undergo SI for 30 days and pay fine of Rs.10,000/- in case of failure of the same he has to further undergo SI for 30 days.

Further Accused is convicted for the offence punishable U/Sec.51(b) of the Disaster Management Act and sentenced to undergo SI for one month and pay fine of Rs.500/-. In case of failure of the same he has to further undergo SI for 15 days.

Further Accused is convicted for the offence punishable U/Sec.188 of IPC and sentenced to undergo SI for 15 days and pay fine of Rs.200/-. In case of failure of the same he has to further undergo SI for 5 days.

Punishment shall run concurrently.

7. At this stage, it is relevant to have a look at the provisions of Section 253 & 253 of Cr.P.C.,:

Section 252 in The Code Of Criminal Procedure, 1973 6 Crl.A.No.25134/2021

252. Conviction on plea of guilty. 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 him thereon.

Section 253 in The Code Of Criminal Procedure, 1973

253. Conviction on plea of guilty in absence of accused in petty cases.

(1) Where a summons has been issued under section 206 and the accused desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons. (2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards that fine, or where a pleader authorised by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, 7 Crl.A.No.25134/2021 convict the accused on such plea and sentence him as aforesaid.

8. Now, looking at the present appeal, it indicates that the Appellant has approached the Court under Section 374 of Cr.P.C., which reads as under:

Section 374 in The Code Of Criminal Procedure, 1973

374. Appeals from convictions.

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years 2 has been passed against him or against any other person convicted at the same trial], may appeal to the High Court.

(3) Save as otherwise provided in sub-

section (2), any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.

9. At this stage, it is significant to have a look at the provisions of Section 375 of Cr.P.C., which is relevant to the present case.

Section 375 in The Code Of Criminal Procedure, 1973

375. No Appeal in certain cases when accused pleads guilty. Notwithstanding anything contained in section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal,-

(a) if the conviction is by a High Court; .

(b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality of the sentence.

10. On careful perusal of Section 375 of Cr.P.C., it is very clear that there shall not be any appeal when the Accused pleads guilty. The very provision debars the Accused to prefer the Appeal once he availed the benefit of Section 252 & 253 of Cr.P.C. Absolutely, no case is made out by the Appellant regarding legality of sentence. It is seen that the Trial Judge has passed considered order in accordance with law:

11. Upon careful perusal of the materials on record and keeping in view of Section 375 of Cr.P.C., I am of the opinion that absolutely no case is made out by the Appellant to interfere with the impugned order on the question of legality of the sentence. The Trial Judge has rightly appreciated the case on merits and as there is minimum sentence the Trial Judge strictly adhere to it and passed appropriate order. Since, there is clear bar under Section 375 of Cr.P.C., to prefer an Appeal when the Accused pleads guilty, I did not find any reason to interfere with the impugned order. Hence, I proceed to pass the following:

ORDER The Criminal Appeal preferred U/S 374 of Cr.P.C., by the Appellant-

Accused is dismissed with costs.

The Judgment, conviction and sentence rendered the learned XI ACMM, Mayo Hall, Bengaluru, in C.C.No.52935/2021 dtd: 16.7.2021 convicting him for the offences punishable U/Sec.188 of IPC and Sec.51(b) of The Disaster Management Act and also Sec. 14 of Foreigners Act is hereby confirmed.

Send back the Trial Court records along with a copy of this Judgment to the trial Court.

(Dictated to the Stenographer directly on computer, typed & computerized by her, corrected and signed by me and then pronounced in the open Court on this the 8th day of February 2023).

[K.M. Rajashekhar], XXVIII. Addl. City Civil Judge, Mayo hall, Bangalore.

Order pronounced in the Open Court (vide septate Judgment) ORDER The Criminal Appeal preferred U/S 374 of Cr.P.C., by the Appellant- Accused is dismissed with costs.

The Judgment, conviction and sentence rendered the learned XI ACMM, Mayo Hall, Bengaluru, in C.C.No.52935/2021 dtd: 16.7.2021 convicting him for the offences punishable U/Sec.188 of IPC and Sec.51(b) of The Disaster Management Act and also Sec. 14 of Foreigners Act is hereby confirmed. Send back the Trial Court records along with a copy of this Judgment to the trial Court.

[K.M. Rajashekhar], XXVIII. Addl. City Civil Judge, Mayo hall, Bangalore.