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Delhi District Court

Jitender Kumar Sharma vs The State (Govt. Of Nct Of Delhi) on 10 January, 2023

            IN THE COURT OF MS. SHALINDER KAUR:
           PRINCIPAL DISTRICT & SESSIONS JUDGE:
           SHAHDARA DISTRICT, KKD COURTS DELHI

Criminal Revision No. 177/22

JITENDER KUMAR SHARMA
S/o Sh. Satish Kumar Sharma,
R/o H.No. 750, Shri Ram Gali,
Arthala, Mohan Nagar,
Ghaziabad, U.P.
                                                            .....REVISIONIST
                              VERSUS
THE STATE (GOVT. OF NCT of Delhi)
                                                            .....RESPONDENT

Date of Institution    : 26.11.2022
Date of Decision      : 10.01.2023


ORDER

1. This is criminal revision petition preferred by the revisionist assailing the order dated 15.11.2022, passed by Ld. Judge Evening Court No.4, Shahdara, Karkardooma Courts, Delhi. Upon filing of the revision petition, the Trial Court Record was summoned and was received.

2. The brief facts, as mentioned in the Kalandara filed by police of Police Station Harsh Vihar under Section 28/112 of The Delhi Police Act, 1978 (hereinafter, referred to as 'DP Act') dated 07.11.2022 are that a DD Entry was registered in the police station Harsh Vihar on 07.11.2022 at 22:05:44 Hours mentioning that HC Hari Mohan alongwith HC Rahul were patrolling the area Sewadham Road, Mandoli, Delhi. A Guest House being run under the name of Classic Guest House was found where one Sh. Jitender Kumar Sharma was sitting on the Cr. Rev No.177/2022 Jitender Kumar Sharma Vs. State Page 1 of 9 reception, HC Hari Mohan made inquiries from him and demanded the licence of the Guest House. Sh. Jitender Kumar Sharma, aged about 18 years, could not produce any licence or permission to run the Guest House. Accordingly, the Kalandar under Section 28/112 DP Act was prepared and Jitender Kumar Sharma was bound down by the police vide Pabandinama. The Kalandara alongwith accused Jitender Kumar Sharma was produced in the court on 15.11.2022. The Ld. Judge Evening Court No.-4, Shahdara District, Karkardooma Courts, Delhi took cognizance of the offence and accused was ordered to pay fine of Rs. 50/- as he had pleaded guilty. Notice was issued to the investigating officer through ACP for the next date of hearing for filing closure report alongwith sealing photographs as per rules for 20.12.2022. Aggrieved by the said order, the present revision petition has been filed by the revisionist Jitender Kumar Sharma. Copy of the revision petition was furnished to the State.

3. Sh. Mahesh Ranjan addressed arguments on behalf of the revisionist. Sh. Indresh Gupta, Ld. Substitute PP made submissions on behalf of the State.

4. It was argued on behalf of the revisionist that on the advice of the investigating officer that the case will be immediately finished otherwise the revisionist will have to appear in the court time and again since the case will take years for disposal, the revisionist pleaded guilty and paid the fine of Rs. 50/- vide receipt No. F0436884. It was argued that the Ld. Trial Court had completely ignored the law as provided under Section 112 of the DP Act and passed the order of sealing the property apart from imposing fine on the revisionist. It was submitted that the Cr. Rev No.177/2022 Jitender Kumar Sharma Vs. State Page 2 of 9 revisionist was unaware about the legal consequences of pleading guilty as he was not provided any legal assistance or counsel form the legal aid since he was not having a private advocate to plead his case. It was submitted that the Ld. Trial Court had passed the impugned order in a hurry without appreciating the facts and law and ignored the basic principle of natural justice while passing the order of sealing and closure of the property. It was also submitted that the order passed by the Ld. Trial Court is non speaking order wherein it has been casually mentioned that the closure report be filed by the investigating officer as per rules with sealing photographs. The order does not specify the property which was to be sealed. It was argued that the Ld. Tiral Court even did ask the revisionist to produce the licence to verify the correctness of allegations against him. Therefore, the order had been passed casually without application of law. It was submitted that in these circumstances, the impugned order may be set aside.

5. Ld. Public Prosecutor submitted that as the accused had pleaded guilty to the offence and had willingly paid the fine, therefore, as per Section 28/112 DP Act, the Ld. Trial Court had passed the order for closure and sealing of the Guest House. It was submitted that the order is perfectly legal which does not require any interference. The Ld. Public Prosecutor has argued that on the plea of guilt, the revisionist was rightly convicted by the Ld. Trial Court as he was running the Guest House without a valid license so the Ld. Trial Court had convicted him and passed the order of closure of Guest House in accordance with law. Therefore, the revision petition is liable to be dismissed.

6. Apart from hearing the arguments, I have perused the Trial Court Record as well as the record before this Court meticulously.

7. Section 28 of the DP Act confers power to make regulations for regulating traffic and for preservation of order in public premises. Subclause z(a) of the Act provides that Commissioner of Police may, by notification in the Official Gazette, make regulations to provide for registration of eating house, including granting, a certificate of registration in each case, which shall be deemed to be a written permission required and obtained under this Act for keeping the eating house, and annual renewal of such registration within a specific period. Section 112 of DP Act provides penalty for not obtaining licence in respect of place of public entertainment or certificate of registration in respect to eating house or for not renewing such licence or certificate within prescribed period, which reads as under:

"(1) Whoever fails to obtain a licence under this Act in respect of a place of public entertainment or a certificate or registration thereunder in respect of any eating house, or to renew the licence or the certificate, as the case may be, within the prescribed period shall, on conviction, be punished with fine which may extend to fifty rupees.

(2) Any court trying any such offence shall in addition direct that the person keeping the place of public entertainment, or the eating house, in respect to which the offence has been committed shall close such place, or eating house until he obtains a licence or fresh licence, or a certificate of registration or fresh certificate of registration, as the case may be, in respect thereof and thereupon such person shall forthwith comply with such directions."

8. Section 129 of DP Act provides for summary disposal of certain category of cases but as per Section 110 read with Section 129 of DP Act it is apparent that Section 112 DP Act is to be excluded from the same. It appears that the legislature has considered the offence punishable under Section 112 DP Act in respect of eating houses to be serious. The main object of the Act is to maintain appropriate hygiene. The primary arguments raised on behalf of the revisionist is that in the present case, is that revisionist was not explained about the seriousness of the implication of pleading guilty before the Ld. Trial Court. The accused was persuaded by the Investigating Officer that only a fine of Rs. 50/- will be imposed so he pleaded guilty before the Ld. Trial Court but he was not aware that an order for closure of the Guest House in question shall also be passed by the Ld. Trial Court. It was argued that the accused was not assisted by any advocate who could have explained him about the consequences of pleading guilty that apart from fine, there can be an order of closure of the Guest House. Accordingly, it was submitted that in the absence of the said legal assistance, the plea of guilt of the revisionist was not validly recorded and he was also deprived of being heard on the issue of closure of the Guest House. Therefore, the order of conviction of revisionist passed by the Ld. Trial Court be set aside.

9. It is abundantly clear that in serious offences, the conviction should not be recorded on the plea of guilt unless consequences of plea of guilt are properly explained to the accused before recording his plea of guilt and convicting him.

The Court should also record its satisfaction on the plea of guilt of the accused that same is voluntary and should also indicate the facts and circumstances of the case and the offence allegedly committed by the accused. In appropriate cases despite plea of guilt, the court may even order for recording for evidence instead of passing order on the plea of guilt of the accused if the court is not satisfied that the plea of guilt is voluntary, clear, unambiguous and unqualified and the accused understands the nature of allegations made against him which are necessary and essential to constitute the offence.

10. Section 252 of CrPC empowers a Magistrate, which are triable by summary procedure, to convict the accused on his plea of guilt which requires the Magistrate to record the plea as nearly as possible in words used by the accused and may in his discretion convict the accused thereon. As per Section 112, the punishment prescribed is fine of Rs. 50/- or in the event of order not being complied with, for closure of the place or imprisonment for one month. Thus, the offence necessarily falls within the definition of summary trial and as per Section 260 CrPC, it can be tried in a summary way.

11. It is pertinent to mention that according to Section 207 of Criminal Procedure Code, copies of the police report alongwith documents are to be supplied to the accused. Section 207 CrPC makes no distinction between summons cases, warrant cases or summary trial cases but mandates the Magistrate to supply the copy without any delay to the accused. From the trial court record, it is not clear if the copy of the Kalandra was supplied to the revisionist or not. The Ld. Counsel for the revisionist Cr. Rev No.177/2022 Jitender Kumar Sharma Vs. State Page 6 of 9 primarily contended that the plea of guilt by the revisionist in the present case is not voluntarily as he was not explained about the consequences in case he pleads guilty and moreover he was persuaded by the investigating officer to get his plea of guilt recorded and he shall be imposed fine of Rs. 50/- only. The Ld. Trial Court had passed the impugned order on 15.11.2022 which is as follows :-

"Fresh Kalandra received. It be checked and registered.

Present : Ld. APP for the State.

IO is present.

Cognizance of offence is taken.

Accused Jitender Kumar Sharma paid an amount of Rs. 50/- as fine and he pleads guilty.

Issue notice to IO through ACP concerned for the next date of hearing for filing the closure report alongwith sealing photographs as per rules on next date of hearing.

Be put up on 20.12.2022.

At request, copy of this order be given dasti to"

12. Bare perusal of the impugned order makes it clear that the accused was not represented by any advocate. The proper plea of guilt has not been recorded. It has been mentioned that accused Jitender Kumar Sharma paid an amount of Rs. 50/- as fine as he pleads guilty to the offence.

13. It is relevant to mention the decision in K.S. Gurung v. Ramananda Prasad, (Sikkin)(DB) 2001 Cri.L.J., it was held:

"It appears that the accused pleaded guilty on that date under the impression that sentence of imprisonment would be till the rising of the Court. The Cr. Rev No.177/2022 Jitender Kumar Sharma Vs. State Page 7 of 9 order of sentence being in contravention of the statutory provision, the order is illegal and we are of the view that the accused persons pleaded guilty under the impression that they would suffer imprisonment only till the rising of Court, and therefore, they should have an opportunity to contest the case. In the result, the revision is allowed, the impugned order is set aside and the matter is remanded to the Chief Judicial Magistrate, East and North who shall proceed with the trial, according to law. The accused shall appear before the Chief Judicial Magistrate, East and North on 25th September, 2000."

14. In State of Karnataka Vs. Mallappa Shidilingappa Ganagi, 1979 CriL.J. 1482, following observations were made by Division Bench of Karnataka High Court:

"_______The order sheet maintained by the Magistrate shows that on 17.01.1978 the documents referred under Section 173(5) CrPC 1973, were furnished to the accused and at the same time substance of the accusation was read over to the accused and the accused pleaded guilty. In view of this fact we are of opinion that accused was not afforded sufficient opportunity to acquaint himself what the case of the prosecution was against him, understand the same and prepare himself either to claim that he wanted to defend or to decide to plead guilty. The accused has given the same answer to all the questions namely "Nanu gunne Kabool maduttene". When translated into English, it means I admit the offence. The way in which the accused has stated in his plea shows quite clearly that he has given his plea in a mechanical manner. Before accepting the plea of guilty it is the bounden duty of the Magistrates to satisfy themselves that the concerned accused has understood the charge or the substance of the accusat9ion against him and the concerned accused has after understanding the same pleaded guilty and also after realising the consequences that follow. The aforementioned facts and circumstances leave much for speculation as to whether the accused had understood what the prosecution case was against him and pleaded as narrated above realising what would be the consequence of his plea."

15. In the present case, although the imposition of fine of Rs. 50/- does not make the offence punishable under Section 28/112 DP Act as a serious offence but the order of closure of the Guest Cr. Rev No.177/2022 Jitender Kumar Sharma Vs. State Page 8 of 9 House certainly manifests that the impugned order had serious consequences. More specifically, when the revisionist has raised the plea that IO had persuaded him to plead guilty by assuring him that he shall be let off with payment of fine of Rs. 50/- only. The Ld. Trial Court did not properly record the plea of guilt of the revisionist by apprising him of the consequences regarding closure order of the Guest House in case revisionist pleaded guilty. Therefore, the revisionist did not get a fair chance of being heard which has violated the principle of natural justice and he could not have been convicted without following the golden principle of natural justice.

16. With these observations, I consider that the proceedings held by the Ld. Trial Court with respect to filing of closure report alongwith sealing photographs cannot be sustained and is bad in law, thus exercising the power under Section 399 CrPC, the order dated 15.11.2022 is set aside. The Ld. Trial Court is directed to decide the Kalandra under Section 28/112 DP Act afresh as per law.

17. To sum up, the revision petition is allowed. Revisionist is directed to appear before the Ld. Trial Court on 23.01.2023. Copy of this order be sent along with TCR to Ld. Trial Court. Revision file be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT ON 10th January 2023 (SHALINDER KAUR) PRINCIPAL DISTRICT & SESSIONS JUDGE, SHAHDARA DISTRICT, KKD COURTS: DELHI Cr. Rev No.177/2022 Jitender Kumar Sharma Vs. State Page 9 of 9