Delhi District Court
Gian Gupta S/O Late Sh C L Gupta vs The State ( Nct Of Delhi) on 26 August, 2009
1
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01 SOUTH
PATIALA HOUSE COURT
Criminal Appeal No. 180/09
Gian Gupta s/o late Sh C L Gupta
Prop. M/s Westened Inn
NH-8 Near Shiv Murti
Rangpuri New Delhi .....Appellant
Vs
The State ( NCT of Delhi)
through SHO PS Vasant Kunj
New Delhi ......Respondent
Date of Institution of appeals 23.03.09 ( 18.10.07)
Date when arguments
were heard 25/08/09
Date of order 26/08/09
ORDER
By this order, I shall decide criminal revision petition. The brief facts giving rise to the revision petition are that Sub Inspector Shiv Singh of police station Vasant Kunj has filed complaint/kalandra under section 28/112 Delhi Police Act alleging that petitioner being owner was running Westened Inn Hotel at NH-8, New Delhi without any valid licence, therefore, he committed the offence under section 28/112 Delhi Police Act.
The petitioner was convicted vide impugned order dated 07.09.07 and he was sentenced to pay fine of Rs. 50/- . In default of payment of fine petitioner was directed to undergo simple imprisonment for seven 2 days. In addition, he was directed to close down the said Westened Inn Hotel.
On behalf of the petitioner written arguments are also filed. I have heard learned counsel for petitioner and learned Additional Public Prosecutor for the State and have gone through the written arguments filed on behalf of the petitioner, trial court record and relevant provisions of law and authorities cited on behalf of the petitioner, carefully.
The contention on behalf of the petitioner is threehold. First contention of learned counsel for petitioner is that learned counsel for the petitioner, in trial court, informed the petitioner that only a fine of Rs 50/- will be imposed but the petitioner was never told that there will be an order of closure of the Guest House named Westened Inn Hotel of the petitioner, therefore, misguided by learned counsel for petitioner, who was appearing before learned trial court, petitioner pleaded guilty and was sentenced as referred before. It is argued that for the fault of the counsel a litigant engaging counsel should not be made to suffer. Reliance is placed upon the authority Rafiq and another Vs Munshilal and another AIR 1981 SC 1400 wherein following observations were made:
" The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a ruler area 3 and may have no knowledge of the court's procedure. After engaging the lawyer, the party may remain supremely confident that the lawyer will lookafter his interest. At the time of the hearing of appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured him that he has neither to go to the High Court to inquire as to what is happening in the High Court withregard to his appeal nor is he to act as a watch dog of his advocate that the latter appears in the matter when it is listed"
it was also observed as follows:
" The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The anwer obviously is in the negative. May be that the learned advocate absented himsell deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his 4 chosen advocate defaulted".
The next contention of the learned counsel for petitioner is that petitioner has already applied for a licence for operating guest house under the name and style Westened Hotel Inn copy of this letter of petitioner dated 10.12.04 received in the office of Deputy Commissioner of Police ( Licencing) dated 13.12.04 is already filed. Another letter dated 04.09.06 reminding Deputy Commissioner of Police ( Licencing) to issue licence for the running of guest house was submitted in the office of Deputy Commissioner of Police ( Licencing)on 05.09.06 copy of which is alreay filed on record. It is argued that in the face of these requests of petitioner tending before Deputy Commissioner of Police ( Licencing), the petitioner cannot be challaned under Section 28/112 Delhi Police Act. Reliance is placed upon the order dated 19.08.02 passed by our Hon'ble High Court in Criminal Misc No. 3033/98 and Cri. M 6072/1998 titled Gajender Singh Vs State wherein following observations were made:
In the absence of any policy and in view of the letter of the Commissioner of Police, I deem it proper to quash the proceedings pending against the petitioner in DD No. 65-B/96 dated 17.9.96, under section 28/112 of the Delhi Police Act before the Metropolitan Magistrate, Tis Hazari, Delhi. A citizen cannot be subjected to criminal proceedings due to inaction of authorities. It is ordered accordingly.
It will be open to the authorities to frame 5 policy and require of the petitioner to take out licence in accordance therewith. This order is not a carte blanche to carry on any illegal trade but a wake up call to the Government for framing policy to regulate trade, if it so desires. Lethargy does not find favour with this court.
The next argument on behalf of petitioner is that in serious matters the accused should be properly explained the implication of pleading guilty by the court. In the present matter the accused was pursuaded by his counsel that only a fine of Rs 50/- shall be imposed so petitioner pleaded guilty before learned trial court. It is argued that accused believed his counsel as on earlier two ocassions on 23.8.07 in DD No. 62A/2006 and 62B/2006, the petitioner was challaned under section 28/112 Delhi Police Act and on the plea of guilt he was sentenced to pay fine of Rs 50/- each case and no direction was passed by learned Metropolitan Magistrate for closure of guest house in question. The copies of the two orders dated 23.8.06 passed by learned Metropolitan Magistrate in these two cases are also filed along with revision petition in support of this contention. It is argued that learned Metropolitan Magistrate ought to have explained to the petitioner that in case the petitioner pleads guilty there can be an order of closure of the guest house in question. In the absence of such information given by learned Metropolitan Magistrate the plea of guilt of the accused is not validly recorded and the order of conviction and sentence passed against accused are liable to be set aside. Reliance is placed upon the authority State of Karnataka Vs Mallappa Shidilingappa Ganagi 1979 Cri L.J. 1482 wherein following observations were made by Division 6 Bench of Karnataka High Court :
"-------------- The order sheet maintained by the Magistrate shows that on 17.1.1978 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 accepitng 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 susbstance of the accusation against him and the concerned accused has after understanding the same pleaded guilty and also after realising the consequences that follow. The 7 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."
Learned Additional Public Prosecutor has argued that on the plea of guilt accused was rightly convicted by the learned trial court. He was running the guest house without valid licence so learned Metropolitan Magistrate rightly convicted and rightly passed order of closure of guest house in accordance with law, therefore, revision petition is lilable to be dismissed.
I have carefully gone through the respective arguments. The law on the plea of guilty is now settled and the firm legal position is that in serious matters the conviction should not be recorded on the plea of guilt unless consequences of plea of guilt are properly explained to the accused and he is apprised of consequences before recording his plea of guilt and convicting him. The court should also be satisfied that plea of guilt is voluntlarily made and facts and circumstances of the case should indicate that accused has committed offence. In appropriate cases despite plea of guilt the court may ask for evidence to be given by parties despite plea of guilt by accused. In State of Mizoram v. Ramengmawia, (Gauhati)(DB) 2006 Cri.L.J. 1188 it was held:
"23. From a careful reading of what has been observed and held in Sukhdeo Singh (supra), it is abundantly clear that in law, there is no absolute 8 bar, on the part of the Court of Sessions, to convict an accused on his plea of guilty; but before the conviction of the accused is based entirely on his plea of guilt, the Court must take care to ensure that the plea of the accused is voluntarily, clear, unambiguous and unqualified, that the accused understands the nature of the allegations made against him and admits them and that the accused admits all such facts, which are necessary and essential to constitute the offence.
24. What further logically follows is that the Court must also be satisfied that the facts places before it in support of the plea of guilt must be in themselves sufficient to sustain the offence charged with. In other words, the Court must have before it all such facts, which are essential to constitute the offence and such facts must be admitted by the accused before the plea of guilt of the accused is acted upon or conviction is based thereon.
25. We may hasten to point out that unlike Section 229 Cr. P.C., where the legislature allows the Sessions Court merely to record the plea of guilt of the accused and convict him thereon, Section 252 Cr. P.C., which empowers a 9 Magistrate, in the cases, which are triable by summons procedure, to convict the accused on 'his plea of guilty' requires that a Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict thereon. Unlike Section 252, though Section 229 does not cast any obligation on the Sessions Judge to record the plea of the accused as nearly as possible in the words used by the accused, yet prudence demands that the Court records the plea in the words used by the accused so that the Court confirming conviction and sentence may know what exactly the plea of the accused was.
26. In the case at hand, the record reveals that the learned Court below framed the charge under Section 302 IPC against the accused. The charge was to the effect that the accused had committed murder by killing his grandfather, Sawikima, with an axe. The mere killing, it needs to be reiterated, is not necessarily an offence under Section 302 IPC. Imperative it was, therefore, on the part of the learned trial Court , to frame an appropriate charge indicating as to how the offence of murder had been committed by the accused. This apart, there is absolutely no indication from the 10 materials on record that the learned trial Court ever it was brought to notice of the accused that he had the freedom not to plea guilty to the charge framed against him. The learned trial Court did not make any effort to determine if the accused understood the consequences of pleading guilty to the charge and/or whether the plea of guilty of the accused was free and voluntary or whether the same was influenced by any person or any factor. In fact, not even slightest of endeavors was made by the learned trial Court to determine if the facts on record, as presented before the Court at the stage of recording of the plea of guilt, reflected all the ingredients constituting the offence of murder. Situated thus, we are satisfied that the learned trial Court, in the facts and circumstances of the present case, ought not to have acted upon the plea of guilty of the accused. Coupled with these disquieting features, it is also imperative to note that the learned trial Court has assigned no reason whatsoever as to why it opted to base conviction of the accused on his plea of guilty.
27. In the result and for the reasons discussed above, this reference fails. The conviction of the accused and the sentence passed against him 11 are hereby set aside and the matter is remanded to the learned trial Court for retrial."
In Ram Kumar v. State of U.P., (Allahabad)(DB) 1998(1) R.C.R.(Criminal) 816 : 1998 Cri.L.J. 1267 it was held:
"10. Almost all the High Courts of the country have taken the view that the court should not act upon the plea of guilty in serious offences but should proceed to take the evidence as if the plea had been one of not guilty and should decide the case upon the whole evidence including the accused plea. We do not consider it necessary to refer to those decisions in detail. As mentioned earlier the appellant had pleaded not guilty and as such there was no occasion for the court to record a finding of conviction as contemplated by Section 229, Cr.P.C. The prosecution having led no evidence to prove its case, the conviction of the appellant has to be set aside."
In Manish Misra v. State of U.P., (Allahabad) 2003 Cri.L.J. 4085 :
2004(2) R.C.R.(Criminal) 33 it was held:
"12. The above decisions of various High Courts and of this Court also show that in cases of serious offences the Court should not act upon the plea of guilty. There can be no dispute that the offence under Section 21 of the Act is of 12 serious nature providing deterrent punishment and as such the Court should not act upon the plea of guilty but to proceed to decide the case on merit after taking the evidence."
In Gopal v. State, (Madras) 1999(2) R.C.R.(Criminal) 424 : 1999 Cri.L.J. 813
3. The learned counsel for the petitioner contended that the plea of guilty by the petitioner is not voluntary and he had been made to plead guilty promising that he would be let off with the fine. The docket entry filed also would show that even on the date when the charge sheet was filed i.e. on 26.5.92, the memo has been filed pleading guilty. The counsel who appeared for the petitioner also filed an affidavit, pointing out the circumstances under which the memo was filed.
In view of the decision in Thippeswamy v. State of Karnataka, AIR 1983 SC 747 : 1983 Cri LJ 271, the plea bargaining is illegal and violative of Article 21 of the Constitution. No summons were also issued to the petitioner for appearance on 26.5.92, thereby indicating that there was influence on the part of the police against the petitioner. Both the courts below wrongly came to 13 the conclusion and ultimately convicted the petitioner without giving any opportunity.
It was also held:
"5. The learned public prosecutor contended that it is a new contention raised by the petitioner only for the first time before the revision Court and no such contention was raised in the Appellate Court. No doubt, in the lower appellate Court such a view has not been taken but it does not meant that there would be bar preventing the petitioner from raising such a plea. Now additional grounds have also been filed to the petition, to show that on the assurance given by the respondent only the memo was filed on 25.5.92. When once the petitioner is able to establish by recorded material that even when the charge sheet was filed, the memo was filed, would only strengthen the case of the petitioner that due to the influence of the policy onle, the guilty memo waa filed on the same day. Moreover, the advocate who had filed the memo for and on behalf of the petitioner has also filed an affidavit now to show under what circumstances the memo was filed on the said date. If these things are taken together, it will lead to the irresistible conclusion that because of plea bargaining only, such a memo was filed and, as 14 such, it is a violation of Article 21 of the Constitution. The present contention of the respondent that such a plea was not taken in the appellate Court cannot be given much weight. Considering the facts and circumstances of the case it has been established by record that even on the date of the filing of the charge sheet, the guilty memo was filed.
6. The learned counsel for the petitioner also relied on Thippeswamy's, AIR 1983 SC 747 : 1983 Cri LJ 1271 (supra) and also State of Karnataka v. Nagaraja, 1997 Cri LJ 696 (Kant) in support of his contention that "if the party is able to establish that due to plea of bargaining only, guilty memo was filed, the conviction and sentence imposed on the party is liable to be set aside and opportunity has to be given to defend the case and ultimately the Court can dispose the case on merit." The aforesaid decisions are applicable to the facts on hand. Considering the fact that the petitioner is involved in a grave crime and minimum punishment is also prescribed, it is just and necessary that an opportunity has to be given to the petitioner to defend the case and the conviction and sentence are liable to be set aside.
7. In the result, the revision is allowed and the 15 conviction and sentence imposed on the petitioner by both the Courts below are set aside and the matter is remitted back to the trial Court with a direction to restore the case to its file and record the plea of the accused again and dispose the case on merits in accordance with law, within a period of two months from the date of receipt of the records. The petitioner is also directed to appear before the trial Court on 13.7.1998."
In Jagdish Singh v. State of H.P. , (H.P.) 1998(2) CLJ(H.P.) 162 it was held:
"11. Chapter XX of the Code of Criminal Procedure comprising of Sections 251 to 259, prescribes the procedure for the trial of summons cases. A combined reading of Sections 251, 252 and 153, would show that in all cases in which the conviction is not recorded on the plea of guilty by an accused, the Magistrate is bound to hear the prosecution and take all such evidence as may be produced in support of its case. He is equally bound to hear the accused and to take all evidence which he may produce in his defence by virtue of Section 254(1). The procedure and form of trial prescribed is of mandatory nature.
12. In the present case, a perusal of the record 16 shows that while sentencing the two appellants under Section 344, Code of Criminal Procedure, the learned Special Judge has failed to follow the prescribed procedure laid down under the law. The learned Special Judge, without recording any evidence of the prosecution and without affording any opportunity to the appellants to lead defence, if any, has proceeded to convict and sentence the appellants merely after recording their plea. Even in such plea, neither of the two appellants pleaded guilty. They specifically pleaded not guilty to the accusations levelled against them."
In K.S. Gurung v. Ramananda Prasad, (Sikkim)(DB) 2001 Cri.L.J. 3072 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 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.
2. In the result, the revision is allowed, the 17 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.
Petition allowed."
In the light of above case law, it is clear that in serious matters the accused should not be convicted on the plea of guilt and beside the plea of guilt, evidence should be taken to decide the matter by appreciating plea of guilt as well as evidence. In the present case although maximum fine which can be imposed under section 28/112 Delhi Police Act is Rs. 50/- which does not make it a serious offence. But the order of closure of the guest house in question certainly makes the impugned order with serious implication, therefore, offence under section 28/112 Delhi Police Act which may lead to such serious repercussion, on conviction, has to be treated as serious offence. Hence, when the plea is raised before this court that the learned counsel appearing on behalf of the petitioner before learned trial court pursuaded him to plead guilty by assuring him that he would be let off with fine of Rs. 50/- only and on two earlier occasions for the same offence pertaining to DD No. 62A and DD No. 62B of same Police Staiton, the petitioner indeed was imposed fine for the sum of Rs 50/- only by ld. Metropolitan Magistrate with no order of closure of the guest house. On the next occasion in this petition the petitioner, in my view, did have 18 expectations in his mind that only fine of Rs 50/- would be imposed and the order of closure of guest house shall not passed by learned Metropolitan Magistrate, particulary when he was pursuaded to plead guilty by his counsel, as referred before. The learned Metropolitan Magistrate also did not properly record plea of guilt of the petitioner in this case by apprising him of the repercussion of closure order of the guest house, in case petitioner pleads guilty. Further, since the petitioner has already stated to have made application for grant of licence as long back as in the year 2004 copy of which is already filed and he issued reminder to the Deputy Commissioner of Police ( Licensing) for issuance of licence for the guest house, referred before, he was protected by the observations made by our Hon'ble High Court in Gajender Singh's case( supra) had he been allowed to contest the matter and produce evidence.
In view of the above, I hold that learned Metropolitan Magistrate acted with material irregularity in not apprising the petitioner about the consequences of pleading guilty before recording plea of guilt of the petitioner. Due to pursuation of counsel for petitioner to plead guilty by assuring him that only fine of Rs 50/- shall be imposed. He should not be visited with evil consequences in the matter in the light of Rafiq's case( supra). The facts and circumstances of the case, therefore, require indulgence of this court and the matter should go to the learned trial court for deciding the kalandra under Section 28/112 Delhi Police Act after recording the evidence of the parties as per law.
In view of the above, the revision petition is allowed and the impugned orders dated 07.09.07 is set aside . The learned trial court shall 19 proceed further in accordance with law by giving fresh Notice under Section 251 CrPC to the petitioner and treating the proceedings in the case as summons trial. Petitioner to appear before learned trial court on 10.09.09. The trial court record be returned alongwith the copy of this order. The order be sent to the server (www.delhidistrictcourts.nic.in). The appeal file be consigned to the record room.
Announced in the open ( S.K. SARVARIA )
Court on 26/08/09 Additional Sessions Judge-01/South
Patiala House Court